Tuesday, December 17, 2013

Pending cert petitions seeking clarification of Williams

An anonymous reader has pointed out that the second petition for certiorari in Turner v.  United States, No. 13-127, one of the cases that was GVRed (grant, vacate, remand) in light of Williams v. Illinois, came before the Supreme Court's conference on Friday but the Court did not take any action.  (The case was originally distributed for the conference of September 30, but before hen the Court requested a response form the Government, so the case was relisted.)  It may well be that the Court realizes that it needs to do something in light of the confusion created by the fractured decision in Williams, but it has not yet decided which case to take.  There are several others pending.  The Court has already requested a response from the State in Brewington v. North Carolina, No. 13-504, filed in October, and the State's response is not due until February 3.  Derr v. Maryland, No. 13-637, was filed on Nov. 20, Ortiz-Zape v. North Carolina, No. 13-633, on Nov. 21, and Cooper v. Maryland, No. 13-644,  on Nov. 22.  If readers know of other cases, I'd be glad to learn of them.  It looks like something might be brewing.  Comments welcome! (And I am hoping to post more on this blog in the next several months than I have in the last several!)


Anonymous said...

You're Back When The Time Is Right.

Anonymous said...

Most of the links to the briefs and other references to the post in October are already dead.

Dead links do not aid in comprehension.

Also, is there any way on the comments page to show the DATE on a comment. Currently, it just displays the time which makes some of the comments hard to follow.

Anonymous said...

I know you do not like Giles but this ruling would seem to fly directly in its face. It's difficult to comprehend how Giles could win and this guy could lose given how similar the facts are.


paul said...

Happy New Year Professor Friedman. And thank you for posting this important CC information.

Even if the Court takes up one or more of the cases, I simply don't see how the Court will be able to use any particular case to refine its seemingly hopelessly fractured CC doctrine.

One the one hand you have Kennedy, Roberts, Alito & Breyer who have stated that a hearsay declarant is not a CC "witness against" a defendant unless the primary purpose of their statement was to accuse a targeted person of a crime.

On the other hand, you have Scalia, Ginsburg, Sotomayor & Kagan who apply a much broader definition of "witness against," along the lines the lines of the objective witness formulation.

And, holding the trump card, is Thomas who one can argue holds the most categorical view of the CC's protection, requiring formality/solemnity, unless a prosecutorial motive to evade confrontation exists.

So who is going to blink? Not the Scalia block. Not Thomas. Is there a crack in the Kennedy led foursome? Breyer has swung both ways, but appears to be solidly in the "accuse a targeted of a crime" camp.

In the end, unless one or more of the justices are willing to alter their most recent opinions in Williams, it seems as though the only thing that would be accomplished by granting cert. in one or more of the cited cases is a determination of whether that particular case falls into the holding in Melendez-Diaz or Bullcoming. And if it doesn't, it would fall right back into the muddled Black Hole of Williams.

I guess we will have to wait and see.

Anonymous said...

Even with the fractured state of the court, it could still clarify things like whether the not-for-its-truth rationale for FRE 703 is dead, or whether documents, like autopsy reports, can categorically be deemed nontestimonial. I think you could get majority decisions on those issues (If not for the lack of a certified document, the FRE 703 issues would have been settled by Williams).

paul said...

Medina v. Arizona, No. 13-735, filed by Jeff Fisher: Whether autopsy reports are testimonial.

Seems like an easy case since the report was "certified," unless Thomas is willing to deviate from his formality/solemnity formula or require more "formality" than a simple "certification."

Anonymous said...

The Federal Evidence Review has posted an interesting article on this topic. They discuss several of the pending petitions (primarily Turner) and conclude that the question is not "if" but "when" the Court will grant review in one of these cases.

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paul said...

James v. United States, No. 13-632: Interesting Autopsy/Tox report case directly asking the Court to address the post-Williams mess and set forth a clear standard of which hearsay declarants are "witnesses against" under the CC.

Solicitor General's response due March 17.

The longer this mess goes on, the more convinced I am that there will be at least 5 votes on the Court to throw out the 10 year old testimonial framework, and return to Roberts, at least with respect to forensic evidence hearsay.

Given Sotomayor's numerous references to "reliability" in Bryant, I think she might be able to pull together a coalition (consisting of her, Kagan, Breyer, Alito, Roberts & Kennedy) to at least limit the reach of Crawford, and return to a reliability/hearsay rule framework, at least with respect to forensic evidence hearsay.

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Anonymous said...

Medina vs Arizona is now SCOTUSblog's "Petition of the Day"


I tend to agree with Paul that this is an easy case because it fits within Thomas's framework nicely. But who knows...

paul said...

Cert. Denied in Medina v. Arizona, No. 13-735.

James v. United States, No. 13-632, more likely cert. grant, if the Court is inclined to delve back into the testimonial framework mess. And if, as I stated above, the Court has a coalition of justices that are willing to consider throwing out that framework altogether, at least with respect to forensic evidence hearsay.

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Anonymous said...

Johnson v California 13-8705 is back in the Supreme Court after a journey back into the appeals court and California Supreme Court. The case is awaiting cert again. It was one of several cases the US Supreme Court sent back to appeals court after Williams.

Anonymous said...

Johnson vs California has been distributed for conference on April 25, 2014.

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