As the Supreme Court comes to the end of its nearly month-long recess, I thought it’d be good to review some of the cases the Court has relisted repeatedly in anticipation of what might be coming when the orders list is released Monday Feb. 22. Time permitting–and that is a big “if”—this will be the first of what I hope will be several dull posts.
To begin with, it’s not entirely clear what cases the Court relisted at its January 22 conference, because it hasn’t updated the dockets of many cases that were on for that conference—the last entry still states that they’re on for conference January 22. But because the Court has updated the dockets of cases in which cert was denied, it seems a safe bet that the other cases have been relisted (or are being held for another case).
First up is Thaler v. Haynes, 09-273, on cert to the Fifth Circuit (panel consisting of Jolly, Dennis, and Clement). This case was relisted at the 11/30, 12/4, 1/15, and (apparently) 1/22 conferences; on December 7, the Court called for the record, which arrived on December 31 and January 11. This case involves a convicted murderer’s challenge to the prosecution’s allegedly race-based use of peremptory strikes under Batson v. Kentucky, 476 U.S. 79 (1986). A different trial judge (who, respondent states, was cleaning two pistols on the bench at the time—the case is, after all, from Texas) handled the individual questioning of venire members, so the judge who did the group questioning and conducted the Batson hearing did not also observe the conduct that the prosecutor says precipitated the peremptory strikes.
The Fifth Circuit panel held that, because the judge who assessed the Batson challenge was not the same judge who had questioned the individual venire members, the Texas state courts were not able to perform the sort of factual inquiry Batson requires (which the panel throught includes considering the demeanor of both the rejected juror and the prosecution). Perhaps more significantly, the panel refused to grant the state court decision deference under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which requires that habeas relief not be granted unless the state court proceeding resulted in “a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” The Fifth Circuit reasoned that, because the judge who presided over the Batson hearing had not observed the individual questioning of venire members, “we cannot * * * apply AEDPA deference to the state court, because the state courts engaged in pure appellate fact-finding for an issue that turns entirely on demeanor.”
The Court has observed that Batson “involves evaluating ‘the persuasiveness of the justification’ proffered by the prosecutor,” Rice v. Collins, 546 U.S. 333, 338 (2006), and there is language in Hernandez v. New York, 500 U.S. 352 (1991), and, to a lesser extent, Rice v. Collins, that the “best evidence often will be the demeanor of the attorney who exercises the [peremptory] challenge,” Hernandez, 500 U.S. at 365 (plurality opinion of Kennedy, J.). The judge in question evidently concluded the strikes were not raced-based after observing the prosecutor’s demeanor in explaining the strikes, even if he did not also observe the witness’s demeanor. Texas SG Jim Ho argues that that is enough under Batson and that summary reversal is appropriate. Texas asks the Court to clarify that language in Snyder v. Louisiana, 128 S. Ct. 1203, 1208 (2008) (which Texas calls “dicta”) that “the trial court must evaluate * * * whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor” does not mean that a judge other than the original trial judge cannot adjudicate a Batson hearing.
It might be that someone is simply writing a dissent from denial of cert, although the fact that the Court called for the record suggests that the Court might be considering summary reversal; the Court certainly summarily reverses with some frequency in habeas cases because of the deferential standard of review required by AEDPA. If the Court goes the summary reversal route, I suspect it will do so by reasoning that the grounds of relief relied on by the Fifth Circuit were not yet clearly established in Supreme Court precedent, and there is no textual basis for failing to apply the forgiving AEDPA standard of review simply because the factfinder did not personally observe all the conduct. I think the Supreme Court will be most interested in reversing the statement that state court decisions aren’t entitled to deference under AEDPA unless they’re based on firsthand assessment of demeanor.
Time permitting, I hope to be back in the next couple of days to discuss Los Angeles County v. Humphries, 09-350 (relisted on 1/8/10, 1/15, and, apparently, 1/22), and Harrington v. Richter, 09-587 (relisted on 1/15 and, apparently, 1/22).
UPDATE: Today (Feb. 16) the Supreme Court finally updated its docket to reflect the January 22 relists.
S says:
This is where it would really help if the Justices had been trial judges or at least criminal trial lawyers.
February 15, 2010, 2:49 pmDave N. says:
As a habeas practitioner, that sounds about right.
February 15, 2010, 3:07 pmJay says:
Maybe, and Dennis is certainly to the 5th’s left. But neither Jolly or Clement are, in anyone’s book, so I’m a little surprised if they went off the reservation on a habeas case.
February 15, 2010, 5:15 pmVisitor Again says:
As I recall from a course I took almost half a century ago, the proposition that he who hears the case decides it is a fundamental principle of fairness in administrative law. If it’s requisite for fairness in administrative law, I would have thought it ought to carry similar status in a Batson inquiry, where the representative quality and racially discriminatory selection of a panel that will decide on someone’s liberty are at issue and where questions of demeanor may well be decisive.
Snyder’s admonition seems pretty clear to me although Texas tries to denigrate it as dicta. In any event, the Supreme Court cases taken together demonstrate that determinations of demeanor may be crucial to resolution of a Batson claim. I don’t think anyone on the appellate court went off the reservation here. The right wing justices on the Court may wish to change the reservation’s location, though, and reverse.
February 15, 2010, 5:55 pmDjDiverDan says:
While I certainly won’t venture to guess what the Supremes might do in this case, I think it’s fair to assume that the Fifth Circuit panel (whatever the individual political leanings of the participants) probably viewed the case with a fairly jaundiced eye toward the past practices of the Dallas County District Attorney’s office with respect to Jury Selection. While Henry Wade (yes, he of Roe v. Wade fame) was Dallas County District Attorney for many, many years, there was a written policy within the DA’s Office to the effect that prosecutors should use every effort to keep off of any criminal jury “negroes, jews, mexicans, or anyone who might be sympatheitic to the accused.” While that policy was eliminated from the “official” policy of the Dallas County D.A., it was well into the 1990′s – perhaps even up to the election of Craig Watkins as Dallas County DA – that, as a practical matter, blacks were disproportionately excluded from criminal juries whenever the accused was black (or any minority, for that matter). If the Fifth Circuit Panel engaged in the assumption that any proferred non-racial rationale for using a peremptory challenge to exclude black jurors was likely a pretext, it was NOT an unwarranted assumption. BTW, for those posters who think the outcome might be politically influenced, I’m considered fairly wide to the right on most matters, but on racially biased exclusion of jurors, the bad reputation of Dallas County was very well deserved, and in any prosecution in Dallas County which ocurred prior to 2004 or even 2006, I would have the same jaundiced view of allegations of race-based exclusion of jurors that the Fifth Circuit panel apparently had.
February 15, 2010, 6:52 pmSupreme Court Relist Watch: Thaler v. Haynes and review of Batson claims | Liberal Whoppers says:
[...] rest is here: Supreme Court Relist Watch: Thaler v. Haynes and review of Batson claims [...]
February 15, 2010, 8:42 pmtbaugh says:
There’s also Michigan v Bryant (a Crawford confrontion-clause case). On conference for October 9, record then called for, final record received November 2, relisted for November 24, nothing since then (no relist, no order).
Maybe something’s going on?
February 15, 2010, 11:28 pmSCOTUSblog » Tuesday round-up says:
[...] Elwood at the Volokh Conspiracy discusses Thaler v. Haynes, in which Texas has filed a cert. petition seeking review of the Fifth [...]
February 16, 2010, 9:30 amJohn Elwood says:
I haven’t seen the petition, but if it concerns Crawford and the Confrontation Clause, I suspect the Court has been holding it for Briscoe v. Virginia, decided 1/25. The Court decides how to handle the cases it has held pending a decision at a conference after the decision is handed down. The first conference after 1/25 is the upcoming 2/19 conference, so I wouldn’t be surprised if the Court GVRs in Bryant this coming Monday.
February 16, 2010, 12:11 pmtim baughman says:
Mr. Elwood:
You could be right on Bryant, but the reason I’ve been dubious that it was held for Briscoe is that it’s not a “lab report” type case, but whether the statement was taken to gather testimony or during an emergency (police get call “man shot,” at scene find badly wounded victim, who tells them who shot him and where–6 blocks away—and dies several hours later). The dying-declaration argument isn’t presented, because the state court admitted it as an excited utterance, and the the state supreme court held it was investigatory not emergency.
In any event, we’ll find out at SOME point what they are up to!
Thanks for the response.
Tim B.
(here’s the question from the petition):
Should certiorari be granted to settle the conflict of authority as to whether preliminary inquiries of a wounded citizen concerning the perpetrator and circumstances of the shooting are nontestimonial because “made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency,” that emergency including not only aid to a wounded victim, but also the prompt identification and apprehension of an apparently violent and dangerous individual?
February 16, 2010, 12:37 pmJohn Elwood says:
Doesn’t sound tremendously germane, but they sometimes will still hold cases if they think an argued case will shed any light on it. It’s definitely being held for something–the only reason I can think of for the case to be sitting so long without an additional docket entry is a hold for something. I’m just not sure that something might be. (And call me John.)
February 16, 2010, 12:53 pmtim baughman says:
Thanks, John.
As you might gather, it’s my office’s case, so we are somewhat hopeful at the way this has progressed (starting with the calling for the record, which also happened in Michigan v Fisher, and that ended up with a peremptory opinion, though Bryant doesn’t seem like a PC type of case).
I enjoy your stuff and all of the Volokh conspiracy (and recommend it whenever I have the chance).
Tim
February 16, 2010, 1:10 pmtim baughman says:
and Michigan v Bryant is now (finally) relisted for the 19th, so the tale should be told on the 22nd.
February 16, 2010, 3:40 pmelectronic display says:
so the judge who did the group questioning and conducted the Batson hearing did not also observe the conduct that the prosecutor says precipitated the peremptory strikes.
June 14, 2010, 2:17 am