[Orin Kerr, October 1, 2008 at 1:25pm] Trackbacks
Court Adds Ten More Cases to the OT08 Docket:
The Supreme Court held its "long conference" on Monday, and it has agreed to take 10 new cases (seven of them criminal cases). You can see the list and a quick description here. Before today, the forthcoming Term was notable for having lots of pretty minor cases. Based on a quick skim, the new cases look like more of the same. None of the granted cases look particularly earth-shattering, at least so far: A bunch look like pretty easy reversals.

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Michael J.Z. Mannheimer (mail):
Ah, but Orin, whether the prosecution can use the fruit of a Massiah violation for impeachment purposes -- this question has vexed countless of my Criminal Procedure students. (And, you're right, probably no one else).

Also, I wonder whether the Court might use the Montejo case to cut back substantially on, or even overrule, Michigan v. Jackson. Remember Justice Kennedy's concurrence in Texas v. Cobb, joined by Justices Scalia and Thomas, arguing, in effect, that Jackson should be overruled. That was before the two newest Members joined the Court.
10.1.2008 3:46pm
MJG:
I agree nothing earth shattering, but I also agreed with Mannheimer: several candidates for an incremental rightward shift in the criminal/criminal procedure docket, particularly in cases where Kennedy leans more rightward on the issues.

Also, Doug Berman at Sentencing Law and Policy has harped on the fact that Alito has a lot of criminal experience as a prosecutor, and he notes that he was out of the cert pool as far back as this summer. Leads me to speculate that maybe he helped influence getting more criminal cases onto the docket, at least at this early juncture.
10.1.2008 4:12pm
Redlands (mail):
Given the framing of the issue in Vermont v. Brillon, and not having read the Petitiion or BIO, I am eager to see who answers, "yes."
10.1.2008 4:29pm
heh:
http://www.youtube.com/watch?v=_TiQCJXpbKg
10.1.2008 5:04pm
r.friedman (mail):
It is interesting to see, both this term and last, the increase in the number of criminal cases taken by the Court on direct appeal. Today we have VT v. Brillon, Rivera v. IL, Montejo v. LA, and KS v. Ventris. True, two of these are state appeals (as was Kennedy v. LA last term), but I think the Court is finally responding to its own ADEPA jurisprudence and taking cases before deference attaches. Looking at some of these opinions (Brillion and Lee v. LA pending), I think the Court is going to have some fun adopting itself to state practices. Similarly, all the federal criminal cases are direct appeals. When was the last time there were no federal habeas cases on the docket?
10.1.2008 5:11pm
r.friedman (mail):
Whoops, Kennedy v. LA was not a state appeal, I was thinking of the Indiana competency case, but had Kennedy on the brain.
10.1.2008 5:17pm
MJG:
r.friedman,

I agree. I think a few terms back the Court ran into a thicket where it actually granted cert on some cases looking to dig into the merits, and instead found itself screened out by AEDPA deference, or playing a bit fast and loose to get there (some of the recent Texas special issue cases, were attacked on merits grounds but the more straightforward attack--by Judge Roberts in the infamous "dog's breakfast" dissent--was on AEDPA deference grounds.)
10.1.2008 5:25pm
Respondent:
What happened to the non-unanimous jury verdict cert petitions?
10.1.2008 10:31pm
Dave N (mail):
Professor Mannheimer,

I mentioned Miranda and Massiah this morning (in passing) on a post this morning. This may be the first time Massiah received three mentions (including this one) on this blog in one day.
10.1.2008 11:03pm
r.friedman (mail):
Respondent --
The case is being considered at this week's conference. Given that they announced a bunch of criminal law grants but not Lee, it will probably be cert. denied on Monday.
10.2.2008 8:21am