On May 23, 206, the Supreme Court decided Foster v. Chatman, No. 14-8349 (U.S. 2016), a thirty-year old death penalty case raising Batson claims of racial selection of the trial jury. The court remanded the case, presumably for a new trial. You can read an analysis by Professor Bennett Gershman in his latest titled How Prosecutors Get Rid of Black Jurors.
Interestingly, the federal court has postponed Sheldon Silver’s surrender date pending the Supreme Court’s decision in United States v. McDonnell. Read a recent post by Prof. Bennett L. Gershman on the pending appeal titled Corrupt Acts, Political Favors, and the McDonnell Case. Virginia Ex-Governor McDonnell appealed his bribery conviction after jury found him guilty of receiving frequent and multiple gifts from Jonnie Williams, head of a dietary supplement company. The statute requires that a public official “corruptly received anything of value personally in return for being influenced in the performance of any official act.”
McDonnell appealed the conviction citing routine political conduct, being accessible to its constituents, lending a friendly ear, and even arguing that “political favors were political speech protected by the First Amendments.” Prof. Gershman comments on the Justices’ behavior during the arguments pointing out that although Justice Breyer appeared “troubled by the statutory term ‘influence'”, its definition, meaning and application, Justice Kennedy, on the other hand, appeared to “buy McDonnell’s arguments.”
How will the Court’s decision in McDonnell, a decision watched by many across the country, affect the results of Sheldon Silver’s pending appeal?
- United States v. McDonnell, SCOTUS Case Page.
- United States v. McDonnell, 792 F.3d 478 (4th Cir. 2015).
- John Riley, Sheldon Silver’s Prison Surrender Delayed by Two Months, Newsday (May 18, 2016).
- Kaja Whitehouse, Judge Gives Sheldon Silver Two Extra Months of Freedom, NY Daily Post (May 18, 2016).
- Corinne Ramey, Sheldon Silver Seeks to Remain Free Pending Appeal, Wall Street Journal (May 13, 2016).
- Bennett L. Gershman, Corrupt Acts, Political Favors, and the McDonnell Case, HuffingtonPost (May 11, 2016).
- Anjellica Cappellino & John Meringolo, The Silver Verdict: Conviction Amidst Juror Struggles in High Profile Deliberation, PCJC (Dec. 10, 2015).
Last week, in Molina-Martinez v. United States, the Supreme Court rejected a narrow interpretation of the plain error doctrine that would require a defendant sentenced under the wrong guideline range, but whose sentence would have been within the proper range, to show “additional evidence” beyond the plain error, that the error violated his substantial rights.
In Molina-Martinez, the defendant pled guilty to a crime that appeared to have a guidelines range of 77-96 months and he was sentenced to 77 months. On appeal, he argued for the first time that the District Court miscalculated his Guidelines range, which should have been 70 to 87 months. The Fifth Circuit agreed but held that the defendant could not satisfy the plain error requirement (F.R.Cr.P. Rule 52(b) – an obvious error that affects “substantial rights.”). It reasoned that a defendant whose sentence falls within what would have been the correct Guidelines range must, on appeal, produce “additional evidence” to establish beyond the mistake itself to show that the error affected his sentence. Based on earlier Fifth Circuit caselaw, if a defendant’s ultimate sentence falls within what would have been the correct guidelines range, the defendant must identify “additional evidence” to make that showing.
Most Courts of Appeals have adopted a less demanding standard under which a district court’s mistaken use off the wrong guidelines rang can itself serve as evidence of an effect on substantial rights, without more. See, e.g., United States v. Sabillon-Umana, 772 F.3d 1328, 1333 (10th Cir. 2014) (application of an erroneous Guidelines range “‘runs the risk of affecting the ultimate sentence regardless of whether the court ultimately imposes a sentence within or outside’” that range) (emphasis added); United States v. Vargem, 747 F.3d 724, 728–29 (9th Cir. 2014); United States v. Story, 503 F.3d 436, 440 (6th Cir. 2007). These courts recognize that, in most cases, when a district court uses an incorrect range, there is a reasonable probability that the defendant’s sentence would have been different without the error. The Supreme Court agreed, and rejected the “additional evidence” requirement for plain error review.
- Molina-Martinez v. United States, No. 14-8913, 2016 WL 1574581 (U.S. Apr. 20, 2016) (Court’s Official PDF).
- Molina-Martinez v. United States SCOTUS page.
- United States v. Martinez-Molina, 588 Fed. App’x 333 (5th Cir. Dec. 17, 2014).
- United States v. Sabillon-Umana, 772 F.3d 1328, 1333 (10th Cir. 2014).
- United States v. Vargem, 747 F.3d 724, 728–29 (9th Cir. 2014).
- United States v. Story, 503 F.3d 436, 440 (6th Cir. 2007).
- United States Sentencing Commission, Guidelines Manual – 2015 Version.
POST WRITTEN BY: Michael B. Mushlin, Professor of Law at Pace Law School, Scholar, and Renowned Expert on Prisoners’ Rights.
The Prison Litigation Reform Act (PLRA) sets up roadblocks for prisoners in civil rights cases that are uniquely harsh including a requirement that prisoners must exhaust all available administrative remedies. This exhaustion requirement, which is not imposed on other civil rights litigants, often keeps litigants with meritorious claims out of court. Recently, in Ross v. Blake, No. 15-339, the Supreme Court took a Maryland case from the Fourth Circuit holding that the exhaustion requirement should be excused if the inmate makes a “reasonable mistake” about whether a particular administrative remedy is, in fact, available.
However, during oral argument last week the Court learned that this issue may not be presented by this case at all. This is because in papers filed with the Court before the case was argued it appeared that Maryland’s complicated and confusing administrative remedies were probably, in fact, unavailable to the inmate after all. Thus, there was no “reasonable mistake” after all. And no need to decide whether if there were such a mistake that would excuse the inmate from the obligation to exhaust.
Based on this new information it appears from the oral argument of the case that the Court will either remand the case or dismiss the case as improvidently granted for review. But even if the case is dismissed or remanded the case has value because the oral argument record available here reveals dramatically the Kafkaesque world of confusing remedies that prisoners must confront and overcome to achieve their day in court. If one needs proof of the lack of wisdom of the PLRA’s exhaustion requirement, and the need to repeal it, look no further.
Today, the US Supreme Court is considering a question of
whether the constitution is violated if the chief judge on the highest court of the state refuses to disqualify himself in a death penalty appeal where he was the chief prosecutor who authorized the defendant’s death sentence, obtained the death sentence though his office’s misconduct, and campaigned for the judgeship by showing how many people he put on death row, including the defendant.
Interestingly, amici included many judges, including the late Judge Judith Kaye, who argued that the judge should have recused himself, and a group of professional responsibility law school professors on the same side.
Prof. Bennett Gershman analyzes the issues and implications of Williams v. Pennsylvania in his latest HuffPost article titled A Perfect Storm: Judicial Prosecutorial Misconduct, and a Death Sentence and outlines the various issues involved in this case. The ultimate question is not only whether the judge should have disqualified himself when deciding the defendant’s death penalty appeal but also whether, if he didn’t, his bias on the panel decision was nothing more than a harmless error. As Prof. Gershman concludes that
…without Justice Scalia, a 4-4 split on the Supreme Court is possible. And if that is the result, then under the Supreme Court’s rules the decision of the Pennsylvania supreme Court would be affirmed – and Terrence Williams will be executed.