From speedy trial rights to plea agreements breached by prosecutors to counsel for indigent defendants, the U.S. Supreme Court, in its first orders list of the new term, upped the stakes by adding seven new cases to an already busy criminal docket.
The seven cases granted review were among 10 culled from the Court's summer list of more than 2,000 petitions. In addition to the criminal cases, the justices also granted review in a Superfund cleanup challenge -- the fifth environmental case on the argument docket in a now potentially huge term for environmental law.
In the Superfund challenge, two high court veterans -- Kathleen M. Sullivan, head of Quinn Emanuel Urquhart Oliver & Hedges' national appellate practice, and Maureen E. Mahoney, head of Latham & Watkins' appellate and constitutional practice -- face the federal government on two issues: when so-called arranger liability can be imposed, and whether and when liability may be apportioned among multiple parties potentially liable for a cleanup.
Mahoney represents Burlington Northern & Santa Fe Railway Co. in Burlington Northern v. U.S., No. 07-1601; Sullivan is counsel to Royal Dutch Shell PLC's Shell Oil Co. subsidiary in Shell Oil v. U.S., No. 07-1607.
The cases stem from hazardous-substance contamination at a former agricultural chemical storage and distribution facility in Arvin, Calif. The federal and state governments brought a cost-recovery action against the railroad companies that owned part of the land on which the facility was located and against Shell, which sold some of the contaminants to the operator of the facility and transported them by common carrier.
In a brief on behalf of the U.S. Chamber of Commerce supporting review by the high court, Thomas Jackson, partner in the Washington office of Houston's Baker Botts, said the lower court ruling in favor of the government "widens the already broad net" of Superfund liability to encompass those who sell chemicals or other products in the ordinary course of business based on the assertion that such companies have somehow "arranged for the disposal" of their products at the same time they are delivering them to customers for use.
Another high court veteran -- Donald B. Verrilli, co-chairman of Jenner & Block's appellate and Supreme Court practice -- represents indigent criminal defendants in a challenge to a Louisiana Supreme Court decision holding that an indigent defendant who has been appointed counsel must take some affirmative steps to accept that appointment before the Sixth Amendment's protections -- here, the right to have counsel present during police interrogations -- are triggered. Montejo v. Louisiana, No. 07-1529.
Jelpi Picou, executive director of the Capital Appeals Project, which has been representing the defendants in Montejo, noted that the Montejo grant is the third Louisiana criminal case taken by the high court in the past year -- in marked contrast to the prior decade in which the Court issued a total of three Louisiana-related criminal decisions.
"The Louisiana Supreme Court has been exceedingly reluctant to reverse convictions and death sentences, and elected members of the judiciary often have not been given the guidance necessary to protect the Constitution," said Picou.
Budget-strapped public defender offices may see something of themselves in Vermont v. Brillon, No. 08-88, in which the state seeks reversal of a Vermont Supreme Court decision vacating a felony conviction and barring retrial of a defendant who had a three-year delay in going to trial.
The state contends that the delays were caused solely by the defendant and his public defenders. But the court, counters Michael Brillon's counsel, narrowly held that a 14-month period during which Brillon either had no counsel at all or only nominal counsel should be charged against the state's criminal justice system and ultimately to the courts, not to the defendant. Brillon was assigned six lawyers during his three-year wait.
Other criminal petitions granted include:
• Rivera v. Illinois, No. 07-9995: whether a conviction should be reversed automatically because the trial judge erroneously denied the defendant's peremptory challenge of a juror.
• Puckett v. U.S., No. 07-9712: what standard of review governs forfeited claims that a prosecutor breached a plea agreement.
• Boyle v. U.S., No. 07-1309: in showing the existence of a Racketeer Influenced and Corrupt Organizations Act enterprise, whether the government must prove the existence of an entity with an ascertainable structure apart from the pattern of racketeering activity in which the enterprise engages.