In the Supremes-161011

Here is a link to pending non-military criminal law cases at the Supremes, which may have an impact in military cases. Next set of potentially relevant oral arguments begin 31 October. Here are links to subsequent ‘actions,’ in some of the cases.

Transcript of Maples v. Thomas, oral argument. Whether a defendant is prohibited from arguing in federal court that his death sentence is unconstitutional because his lawyer missed a filing deadline in state court. I’m reminded of Denedo v. United States.

Transcript of Howes v. Fields, oral argument. Suspects are entitled to Miranda warnings when questioned about a crime while they are in custody.

Here are some additional items of pending petitions. Of course there’s no guarantee that any of them will be granted. The purpose listing them from time to time is to give ideas and a source to get some initial research. For example, I’m in the middle of my fifth retrial case, so York v. Texas is of interest (and of course so is Ashe v. Swenson, 397 U.S. 436 (1970)). For some who might say this type of information is overly defense oriented, let me say this from the perspective of having been the CoJ, SJA, and TC. You need to be thinking of your case from a “what can the defense do to me,” perspective. That’s no different than what a good defense counsel does, and I suspect a good military operations planner.

1. A pending petition in United States v. Alvarez, Docket: 11-210, Issue: Whether the Stolen Valor Act, 18 U.S.C. § 704(b), which makes it a crime to falsely represent that you have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, is facially invalid under the Free Speech Clause of the First Amendment.

2. A pending petition in Villaueva v. United States, 10-1535, Whether evidence that is “inextricably intertwined” with the charged crime but does not directly prove that crime may be admitted without the limited-admissibility instruction otherwise required by Federal Rule of Evidence Rule 404(b).

3. A pending petition in York v. Texas, 11-397, Whether the doctrine of collateral estoppel, embodied in the Double Jeopardy Clause of the Fifth Amendment and made applicable to the states through the Fourteenth Amendment, bars relitigation of a fact necessarily decided in the defendant’s favor in an initial prosecution, when that fact is deemed evidentiary in nature in a subsequent prosecution.

4. A pending petition in Segal v. United States, 11-343, (1) Whether the intent to defraud, under the mail and wire fraud statutes, requires an intent to cause harm; (2) whether mail and wire fraud may be premised on misstatements to parties other than the alleged victims of the fraud, without evidence that the victims knew of the misstatements or would have found them material; and (3) whether the breach of a fiduciary or legal duty imposed by state law can form the basis for a federal mail or wire fraud prosecution.

5. A pending petition in Blueford v. Arkansas, 10-1320, Whether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars the reprosecution of a greater offense after a jury announces that it has voted against guilt on the greater offense. Here’s a Time report.

6. And one special for appellate litigators, a pending petition in Wood v. Milyard, 10-9995, (1) Whether an appellate court has the authority to raise sua sponte a 28 U.S.C. § 2244(d) statute of limitations defense; and (2) whether the state’s declaration before the district court that it “will not challenge, but [is] not conceding, the timeliness of Wood’s habeas petition,” amounts to a deliberate waiver of any statute of limitations defense the state may have had.

7. A pending petition in Harvey v. McNeil, 11-295, (1) Whether the court below properly held that counsel’s failure to strike an openly biased juror does not constitute objectively unreasonable performance under Strickland v. Washington and that petitioner must bear the affirmative burden of proving that he did not consent to the biased juror; (2) Whether a court may presume a strategic purpose from a silent record regarding why counsel made decisions that are on their face objectively unreasonable; (3) Whether . . .

8. A pending petition in Kentucky v. Cobb, 11-294, (1) . . . and (2) whether, under Strickland v. Washington, a court may presume that a defendant was prejudiced in the absence of a record showing that a Batson challenge would have been successful?

All links to documents from SCOTUSBlog or the Supreme Court.