Two months ago, I had a few posts on the Supreme Court’s decision in Salinas v. United States, a per curiam summary reversal involving what Supreme Court geeks call “error correction” – a very rare decision by the Supreme Court to take a case only because it looks like the lower court goofed, even if the case has no particular importance for the shape of the law. I wrote:
As a general rule, the chances that the Supreme Court will step in for a case like this are extremely low. Even if the lower court erred, the error did not raise an important question, and the lower court’s decision has no precedential value. The lower court decision was unpublished; the issue was plain error; the outcome of the appeal may not hinge on this issue; and the stakes for the petitioner were relatively low in the grand scheme of things. The Supreme Court has limited resources, and usually lets this sort of error pass uncorrected. Nonetheless, the Supreme Court reversed, pointing out the error and sending the case back to the Fifth Circuit.
Does Salinas signal a new interest from the Roberts Court in correcting errors by lower courts via brief per curiam opinions? I’m not sure, but it’s possible.
The latest data point on this question is yesterday’s opinion in Youngblood v. West Virginia. Youngblood was charged with sexual assault and claimed that the sexual act was consensual. Following his conviction, he filed a motion for a new trial on the ground that he obtained a note allegedly from the victim suggesting that the act was consensual and therefore that he was not guilty. According to Youngblood, a police officer was shown the note and told the person who showed it to him to destroy it. Youngblood moved for a new trial on the ground that the note was newly discovered evidence and the failure to disclose the note to Youngblood before the trial violated the government’s disclosure obligations under Brady v. Maryland. The trial court held an evidentiary hearing and denied the motion for a new trial for newly discovered evdience, but did not bother to address the Brady question. The Supreme Court of Appeals of West Virginia affirmed, giving a cursory look at the newly discovered evidence claim but (like the trial court) not even addressing the Brady issue.
A six-Justice majority of the Supreme Court vacated the lower court decision and remanded, telling the state courts to go back and address the Brady issues on the record. Here is the entirety of the Court’s analysis:
If this Court is to reach the merits of this case, it would be better to have the benefit of the views of the full Supreme Court of Appealsof West Virginia on the Brady issue. We, therefore, grant the petition for certiorari, vacate the judgment of the State Supreme Court, and remand the case for further proceedings not inconsistent with this opinion.
Justices Scalia, Thomas, and Kennedy dissented. Scalia’s dissent pointed out how odd the Court’s course of action was in light of the Court’s traditions and practices:
Here, the Court vacates and remands in light of nothing.
Instead, the Court remarks tersely that it would be“better” to have “the benefit” of the West Virginia court’s views on petitioner’s Brady claim, should we eventually decide to take the case. Ante, at 3–4. The Court thus purports to conscript the judges of the Supreme Court of Appeals of West Virginia to write what is essentially an amicus brief on the merits of an issue they have already decided, in order to facilitate our possible review of the merits at some later time.
The obvious question is, what is going on? Note the common theme with Salinas. In both cases, prior courts did a remarkably cruddy job handling the legal issues a defendant had raised in his briefs, and the Supreme Court sent back the case for a do-over.
I can think of a few possible explanations. My own pet theory is that Chief Justice Roberts thinks that some lower courts are being sloppy in criminal cases: He wants to pressure them to be more careful by sending a signal that the Supreme Court is watching. Alito is on board, notably, which brings to mind Howard Bashman’s claim from 2003 that “Judge Alito cares much more for the ‘little guy’ than do any of the nine Justices currently serving on the Court.” Together with the four more liberal Justices, you get a six-Justice majority in favor of picking out a few cases to put pressure on lower courts to be more careful in criminal cases.
Of course, time will tell if that’s right; it may just be a fluke, or there may be quirky reasons on the inside why the Court took the action it did. But it’s certainly one for Court-watchers to follow.
Finally, it’s worth responding to Doug Berman’s interesting reaction to Youngblood at Sentencing Law and Policy. Doug writes:
The many narrow opinions and the slow pace of cert grants has led me to believe that the Roberts Court was eager to effectuate the “passive virtues” famously championed by Alexander Bickel. But as Justice Scalia highlights in his Youngblood dissent, the Court’s GVR in Youngblood does not seem so passive. And yet, both CJ Roberts and Justice Alito (a purported Bickel fan) are the key swing votes forming a majority for the GVR.
My reaction is almost exactly the opposite of Doug’s. As I see it, the Youngblood case is consistent with Bickel’s approach in the most important sense: It makes no new law. There is no real holding in Youngblood; the Court exercised its power of review without actually deciding the case. As I understand it, Bickel’s “passive virtues” refers to the reluctance to decide cases on broad substantive grounds if narrow procedural grounds exist to decide it. If that’s right, the Youngblood case seems pretty Bickelish to me.
Perhaps the Supreme Court is just now waking up to the fact that state courts routinely ignore Supreme Court precedent, something those of us who have practiced in state court have known for a long time.
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Based on a Google search, Mr. Youngblood’s lawyer, Robert C. Stone, Jr. of Martinsburg, West Virginia, appears to be a solo criminal defense lawyer. His name did not come up in a search of SCOTUS briefs. So he appears to be a good local lawyer going to the mat for his client.
I wonder if most “experienced SCOTUS lawyers” would have said he was wasting his time by filing a cert petition for Mr. Youngblood.
(Also, Mr. Salinas’s lawyer was a public defender.)
It’s not concern for the little guy. Mr. Mannheimer has it right. It’s concern for the lack of respect many courts show for U,S. Supreme Court precedent, so widespread that it threatens the high court’s authority. This most often occurs in criminal cases, of course, and it is usually accomplished by evasion of one kind or another–ignoring the issue altogether, distorting the record or creative manipulation of the legal rule.
A few well-timed and well-directed GVRs might improve things. The interesting qustion for criminal law practitioners is whether they should file cert. petitions in cases not normally deemed certworthy becaue the lower courts have blatantly avoided U.S. Supreme Court holdings. I wonder whether the petitions in the two cases Orin mentions were filed in foma pauperis. I also wonder what reasons for granting cert. were stated in the petitions, i.e., whether the point was made that a jurisdiction’s courts were routinely evading a particular U.S. Supreme Court precedent.
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Visitor again has it right–many state courts just ignore the law. Few things are more frustrating to criminal defense lawyers than to have a court just ignore a critical argument.
In one case, I made a constitutional argument under a recent U.S. Supreme Court case. But the state court, the state prosecutor, the state AG, the federal magistrate, and the federal district court judge all said I should lose because I couldn’t meet the elements of a different cause of action under the standard of an earlier U.S. Supreme Court case. None of them even cited the U.S. Supreme Court case under which I made my argument.
I had to go all the way to the federal appeals court to get a ruling on the cause of action I actually argued. I still lost, but at least a couple of judges showed they had read the briefs.
Another time, I was in a county in which the judges always (at least in death cases) signed off on the detailed findings of fact and conclusions of law submitted by the prosecutor in collateral actions. None of the county’s judges had ever made a single substantive change.
I was so frustrated with obvious factual errors in the state prosecutor’s/trial court’s decision that I raised as an assignment of error something to the effect of “The trial court erred by not reading the petition.” (As a more experienced lawyer, I now admit that I was too harsh.)
In yet another case, I argued that due to a stipulated fact, the state had not proven the mental element needed for conviction. The courts, prosecutors, and AG’s all just said that you could infer the mental state from other facts. None of them even addressed the argument that the inferences they wanted to draw contradicted the stipulation. The guy is serving life without parole.
Unfortunately, these are not isolated incidents.
Hopefully, the threat of GVR will make state courts think once (I’d say “think twice,” but that may be too much to ask). My guess is that the Supreme Court will have to do it a dozen or so times in the near future to make the threat sink in.
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