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Conference Call summarizes the roughly 15 percent of all non-pauper petitions that are the most likely candidates for certiorari. The Supreme Court’s jurisdiction is almost entirely discretionary, and justices in recent years have annually selected roughly 80 petitions from the approximately 7,500 that are filed. Conference Call is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of non-pauper petitions. Various attorneys for the firms then prepare summaries of the cases. If either firm is involved in a case mentioned in this column, that fact will be disclosed.
It’s a case with all the hallmarks of a made-for-TV movie. A beautiful teenage victim, bludgeoned to death with a golf club in a wealthy gated community? Check. Allegations of special treatment by police to protect a suspect, a nephew of the late Sen. Robert Kennedy? Check. A legal team that includes one of the country’s most prominent Supreme Court advocates? Got that one too. In its private conference on Nov. 3, the Supreme Court will consider whether to add an additional chapter to this story by granting review in No. 06-52, Skakel v. Connecticut. Exactly 31 years ago this week, 15-year-old Martha Moxley was murdered near her family’s home in Greenwich, Conn. The murder weapon was a golf club belonging to another well-known family in the Moxleys’ affluent neighborhood, the Skakels, whose relatives included Robert and Ethel Kennedy. One of the Skakels’ teenagers, Tom, had been seen flirting with Moxley on the night of her death. In January 2000, Tom Skakel’s brother Michael was charged with Moxley’s murder. Michael Skakel moved to dismiss the charges against him, arguing that the five-year statute of limitations in effect at the time of the murder had expired more than 19 years before. Reasoning that the statute of limitations did not apply to felony noncapital murder charges, the trial court rejected Skakel’s motion. Skakel was convicted of murder and sentenced to a prison term of 20 years to life. On appeal, the Connecticut Supreme Court agreed that the statute of limitations did not bar Skakel’s prosecution. Unlike the trial court, however, it relied on a 1976 state statute that specifically eliminated the statute of limitations for several offenses, including noncapital murder. The state court concluded that it was “far more likely that the legislature intended” the 1976 statute to apply to cases — such as Skakel’s — in which the prior statute of limitations had not yet expired. After an unsuccessful petition for reconsideration to the Connecticut Supreme Court, Michael Skakel — now represented by former Solicitor General Theodore Olson — sought certiorari. In his petition, Skakel argues primarily that the Connecticut Supreme Court’s decision conflicts with a trio of U.S. Supreme Court precedents — Bouie v. City of Columbia, Marks v. United States, and Rogers v. Tennessee — holding that the due process clause prohibits courts from giving retroactive effect to a new and broader construction of a criminal statute when that construction is unexpected and indefensible in comparison with the prior construction. In Skakel’s case, the petition explains, the Connecticut Supreme Court’s decision was exactly the kind of “unexpected and indefensible” construction that the due process clause forbids: before Skakel’s arrest, the court had specifically held twice that the 1976 statute did not apply to conduct occurring before its enactment. The petition also alleges a second conflict, this time between the Connecticut Supreme Court’s decision and decisions of three other state supreme courts and federal courts of appeals holding that the due process clause is violated when courts reverse recent and binding precedent interpreting state statutes. Opposing certiorari, the state of Connecticut (represented by Senior Assistant State’s Attorney Susanne Gill) downplays any alleged conflict with Supreme Court or lower court precedent. The state reads Bouie, Marks, and Rogers more narrowly, explaining that those cases stand only for the proposition that “a criminal statute must give fair warning of the conduct that it makes a crime.” The Connecticut Supreme Court’s opinion, by contrast, only reinterpreted the statute of limitations; it did not expand the elements of murder, which were “clear at the time of the offense.” Similarly, each of the lower court decisions cited by Skakel deal only with an expansion of criminal liability — which is not at issue in this case. The state’s opposition focuses on supposed procedural flaws in the case that, standing alone, warrant a denial. First, the state notes, Skakel did not raise his due process clause argument either at trial or on appeal. Instead, the argument was made for the first time in the motion for reconsideration, thereby depriving the Connecticut Supreme Court of the chance to address the issue itself. Anticipating the rejoinder that Skakel makes in his reply brief — that the due process question only arose when the Connecticut Supreme Court unexpectedly overruled its prior precedent — the state emphasizes that Skakel should have been “on notice” that the prior precedent “was under siege and ripe for reconsideration.” The case is further flawed, the state explains, because Skakel’s due process arguments rest on the premise that the Connecticut Supreme Court’s decision revived a prosecution for which the statute of limitations had elapsed. Whether the statute of limitations even applied at the time of Moxley’s murder, however, is, according to the state, an “unsettled question of state law” that the Connecticut Supreme Court has never decided. Abstention, rather than certiorari, is therefore warranted. Skakel counters that although abstention might be appropriate in some cases, this case is not one of them because the state court went to “the greatest lengths imaginable” — including overruling its unanimous prior precedent — to avoid resolving the state law question. The Court may announce as early as Nov. 6 whether it will hear the case. Meanwhile, Skakel is simultaneously seeking a new trial based on a statement by a former classmate, Gitano “Tony” Bryant, who has implicated two other men in Moxley’s murder. Like his former classmate, Bryant also has a famous cousin: basketball star Kobe Bryant. — Amy Howe
Other cases up for review include the following: 06-179, Riegel v. Medtronic (CA2) Whether the express pre-emption provision of the medical device amendments to the Food, Drug, and Cosmetic Act pre-empts state law claims seeking damages for injuries caused by medical devices that received pre-market approval from the Food and Drug Administration. 06-160, Davis, et al. v. United States (CA6) Whether, when police use the fruits of an illegal search to secure a search warrant, evidence seized pursuant to the warrant is admissible under the “good faith exception” to the exclusionary rule. [Disclosure: Akin Gump and Howe & Russell represent the petitioners.] 06-176 and 06-201, CNH v. Yolton and El Paso Tennessee Pipeline Co. v. Yolton (CA6) Whether a retiree’s health care benefits are “vested,” and thus must be fully funded by the employer for the rest of the retiree’s life, because the collective bargaining agreement providing the benefits does not expressly limit their duration. 06-287, Ayers v. Clark (CA9) Whether the 9th Circuit violated the Supreme Court’s directive in Rogers v. Tennessee when it failed to defer to a state court’s analysis of a new criminal statute.

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