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Greetings, and welcome back after the all-star break. Four and a half new signed opinions on Monday (four signed opinions and a dismissal for want of jurisdiction), but none of them were the anticipated opinion by Justice Souter in Mead.Plus three new grants and the usual sort of blather. First up: Penry v. Johnson, No. 00-6677. By a 6-3 vote, Johnny Paul Penryjust got his second new trial out of the U.S. Supreme Court for the 1979 rape and murder of Pamela Carpenter (the sister of Redskins kicker Mark Moseley, and, I hasten to add, a human being in her own right). A Texas jury found Penry guilty of first-degree murder in 1980, when I was in the seventh grade. At the close of the penalty phase, the judge had the jury consider three statutorily mandated special issues: (1) whether Penry caused the death deliberately; (2) whether he’d be a continuing threat to society; and (3) whether thekilling was an unreasonable response to the victim’s provocation, if any. The jury answered yes to each issue, and so, as required by law, the judge sentenced him to death. The Supreme Court reversed his conviction in 1987 on the grounds that the jury had not been permitted to “consider and give effect to [mitigating] evidence in imposing sentence,” namely, evidence that Penry was retarded and had been grievously abused as a child. During the 1990 retrial, Penry was convicted again. During the penalty phase, the defense again put on extensive evidence regarding Penry’s mental impairment and childhood abuse, in part through the testimony of psychologist Randall Price. On cross, Price was examined about the records he had reviewed, and he testified that he had read the report of the improbably-named Felix Peebles prepared on behalf of the defense during Penry’s prosecution for an unrelated 1977 rape. Price recounted that Peebles had concluded, remarkably enough, that Penry would be dangerous to others if he was released. When the question of the death sentence was put to the jury, the judge again submitted the same three “special issues” from Penry I, but added the admonition that jurors were to “consider mitigating circumstances, if any, supported by the evidence � ; if you find that there are any mitigating circumstances, you must decide how much weight they deserve … in assessing the defendant’s personal culpability” as to the special issues. The jury was also instructed that in answering the special issues, their answers “should be reflective of the … personal culpability” of Penry. The verdict form contained only the text of the three special issues, and permitted only a yes or no answer to whether those special issues were present. Penry was again sentenced to death. He was denied relief on direct appeal to the state courts, on state collateral review, and on federal collateral review. The Court affirmed in part, reversed in part, and remanded in an opinion by Justice O’Connor. First, the affirming part: By a 9-0 margin, the Court rejected Penry’s claim that the admission into evidence of the portion of the Peebles report referring to his future dangerousness violated his Fifth Amendment privilege against self incrimination. Penry relied on Estelle v. Smith(1981), in which the Court held that admission of a psychiatrist’s testimony about future dangerousness, based on uncounseled statements,violated the Fifth Amendment. The Court found Estelledistinguishable in several respects: There, the defendant hadn’t put his mental condition at issue, the state had chosen the psychiatrist, the state had called the psychiatrist in its case-in-chief, and at the time of the examination, the defendant had already been charged with a crime for which future dangerousness was relevant. In a feat of deliberate and unapologetic vagueness — aren’t these guys supposed to provide guidance or something? — the Court wrote that “We need not and do not decide whether these differences affect the merits of Penry’s Fifth Amendment claim.” The ambiguity was made possible by the AEDPA, because under it, the Court could only find for Penry if the Texas court’s ruling was “contrary to or anunreasonable application of [Supreme Court] precedent.” Given the differences between Estelleand this case, it was not. (This interpretation of the AEDPA gave Justices Stevens, Souter, Ginsburg and Breyer heartburn in last Term’s Williams v. Taylor, but they were evidently pleased enough about the bottom line that they didn’t make a peep about that interpretation here.) This portion of the opinion is most interesting in that it appears Justice O’Connor is throwing cold water on Estelle, noting that “we have never extended Estelle‘s Fifth Amendment holding beyond its particular facts.” Not like it matters with O’Connor, of course, who we know writes every opinion so narrowly it cannot restrict her from voting as she pleases in the next case ( seethe New York TimesSunday magazine), but it’s a good noncommittal indication of where she thinks Estelleis headed. Now the reversing part. At this point, the opinion lost the votes of the Chief and Justices Scalia and Thomas. The Court held 6-3 that the jury had not been able to “give effect to” Penry’s mitigating evidence. The verdict form listed the three special issues with no mention of mitigating circumstances and offered the jury only two choices. The supplemental instruction on mitigating evidence did nothing to help, because it stillbasically offered the jury only the possibility of changing a truthful “yes” answer to an untruthful “no” in light of Penry’s mitigating evidence. Basically, there was no means for jurors to express their view that Penry did not deserve to be sentenced to death, and the Texas court’s contrary holding was “objectively unreasonable.” One interesting aspect of this portion of the opinion is that the Court expressed its skepticism that, by the time the penalty phase proceedings rolled around, the jurors would still remember clarifying instructions issued during voir dire. This isremarkable; usually when it comes to instructions, courts act as though jurors have photographic memories and retain every word that’s said. Justice Thomas dissented, joined by the Chief and Scalia. He relied in part on the “objectively unreasonable” language of the AEDPA, and said that given all the talk of considering mitigating evidence in the supplemental instruction, it was not “objectively unreasonable” to conclude the jury had a means to consider it. Indeed, the judge instructed the jury that if it concluded that “a life sentence … rather than a death sentence is appropriate, a negative finding should be given to one of the special issues.” None of the other three and a half opinions really grab me, so in lieu of rehashing them here, I think I’ll just answer some letters from the bulging Supreme Court Todaymailbag. Q: Dear Mr. Supreme Court Answer Person. I and some of my other former professional football player friends were sitting around in a bar watching the NBA playoffs and the following issue came up: We all agree that for tax purposes, a Product Liability Loss (PLL) represents the total of a taxpayer’s product liability expenses (PLE) up to the amount of its Net Operating Loss (NOL) carryforward. What we disagree about is whether in calculating the overall PLL for a group of affiliated companies, do you addtogether all their PLEs and Separate Taxable Income (STI) and then calculate the overall PLL, or do you calculate the PLL for each individual company and then add them all together? Please let me know soon, because I owe that loudmouth Tony Nathan a case of Bud if the answer is consolidated! Signed, William “the Refrigerator” Perry. A: Thank you for your question, although I doubt that such a simplistic question will do anything to dispel your image as “dumb jocks.” Until recently, the right answer would have depended on where the bar was located, because the 4th and 6th Circuits had disagreed about this question. But just this week, the Court held 8-1 in United Dominion Industries v. United States, No. 00-157, that an affiliated group’s PLL must be figured on a consolidated, single-entity basis, not by aggregating PLLs separately determined on a company-by-company basis. Justice Souter, whose seniority entitles him to sexy assignments like this one, delivered the opinion of the Court, which was unsurprisingly joined by the Chief and Justices O’Connor, Scalia, Kennedy, Thomas, Ginsburg, and Breyer, who probably all did the old “I have to bend under the table to pick up a pencil off the floor now” trick whenthe Chief was looking for someone to write it at Conference. Justice Thomas concurred separately just to disagree with the dissent’s suggestion that when the regulations are ambiguous, the Court should defer to the government’s interpretation. The 81-year-old Justice Stevens somehow cared enough to write a dissent. In a completely unrelated vein, I have noticed that as some men age, they take on more and more work, as if to show everyone else how vital they continue to be. Fridge, have you noticed any examples of this? A: Yes. Mr. Ditka recently took up juggling. Q. Dear Mr. Supreme Court Answer Person: I am currently clerking for a well-known federal court of appeals with almost exclusively discretionary jurisdiction. I wrote a memo recommending that this court review a case involving whether New York v. Belton(1981), which established a bright-line rule permitting a cop who has made a lawful custodial arrest of the occupant of a car to search the passenger compartment as an incident to arrest, should apply when the police initiate contact with the person only after s/he gets out of the car. The state supreme court held that the Beltonrule couldn’t be applied to people who had already exited the vehicle when the police made initial contact, and ordered drugs found during a search of Robert Thomas’ car to be suppressed. Because I stayed up late the night before deciding between Titanium Silver or Estoril Blue for the BMW M-Roadster I plan to buy with my ludicrously large law-firm bonus, I didn’t notice that the state supreme court had remanded for further fact-finding and a determination whether the search of Thomas’ car was legal under Chimel v. California(1969), which allows such searches to preserve evidence or if the officer’s safety is in jeopardy. I just noticed this now, and I seem to remember hearing something about stuff like this can deprive this particular appellate court of jurisdiction. Should I tell my, er, Judge? I’m pretty sure no one will notice it if I just clam up. Signed, Doomed in D.C. A. Dear Doomed: Although neither of the parties noticed it either, the Court did (I’m guessing the revelation emanated from the watchful Scalia chambers), and it dismissed Florida v. Thomas, No. 00-391 for lack of jurisdiction. As you say, the Florida Supreme Court held Beltondidn’t apply to the facts of Thomas’ case, but remanded for fact-finding and an application of Chimel. Under 28 U.S.C. � 1257(a), the Court has jurisdiction to review “[f]inal judgments or decrees rendered by the highest court of a state” involving constitutional claims, and in criminal cases that has been defined to include not only judgments of conviction and sentences but also limited categories of cases in which there are further proceedings to take place in state courts. In dismissing, the Court listed four categories set forth in Mills v. Alabama(1966), the common denominator of which is that the Court has jurisdiction if the federalconstitutional issue in question controls the outcome. That wasn’t the case here, since the state could win if the Florida courts upheld the search under Chimel, and if the Florida courts rejected the Chimelclaim, the state could appeal from that final judgment. The Chief loves Fourth Amendment cases so much he did this opinion even though he couldn’t get to the merits and hose the defendant. Take heart: Former Supreme Court clerks around the country are performing rituals now to thank a variety of deities that they dodged this particular bullet during their time there, and they feel your pain. On the brighter side, you’ll still be able to extort an astronomical sum from some lucky law firm for your services simply by virtue of a single line on your resume. And if worse comes to worse, run out and get a DWI, which more or less guarantees you a spot high in government. Q: Avast, Matey. I am a ship captain. The leg fell off a defective parrot on my shoulder, which fell on one of my sailors, killing him. His lass hath sued me in admiralty, squalling about my negligent breach of a maritime duty of care. Now, I know that courts have held there’s a cause of action in admiralty for negligence when a Jack Tar is negligently injured ( seeyon Robins Dry Dock & Repair Co. v. Dahl(1925)), but this one done died. Does his wench have a claim? Also, what takes care of dry rot in peg legs? –Call me Ishmael. A: Ishmael, you raise an interesting question about one of the few areas of law where the Court is permitted to act openly as a legislature of sorts and make law. As luck would have it, the Court unanimously held in Norfolk Shipbuilding & Drydock Corp v. Garris, No. 99-346, that the general maritime (read: “common-law”) cause of action under Moragne v. States Marine Lines, Inc.(1970) for death caused by violation of maritime duties is available for the negligent breach of a maritime duty of care. The opinion was written by that landlubber Antonin Scalia. While Moragneinvolved the maritime duty of seaworthiness, the Court saw “no rational basis … fordistinguishing negligence from seaworthiness,” because negligence is “no less a distinctively maritime duty than seaworthiness.” It was a closer question whether such a cause of action was precluded by the mass of federal laws in the area (the Jones Act, Death on the High Seas Act, Longshore and Harbor Workers’ Compensation Act), but in the end the Court found none of those precluded such an action. The opinion was essentially unanimous, except that Justice Ginsburg (joined by Justices Souter and Breyer but not Stevens) refused to join a small portion of the opinion in which Justice Scalia said it would be the “better course in many cases that assert new claims beyond what those statutes allow to leave further development to Congress.” (Ginsburg, an inveterate (but subtle) punster in her opinions, quipped that “Moragne itself … tugs in the opposite direction.”) As for your last query, Homer Formby Sealant, No. XT-4531 (the urethane one, NOT the resin shellac) should help you keep your sea legs. Q: Aaargh! Q: This fakey Q&A format is becoming irritating. Would you just drop it and tell us what else happened on Monday before I break your pencil neck, geek? –Stone Cold S. Austin, Pro Wrestling Legal Institute, Owahee, Neb. A: Your point is a valid one. The Court held 8-0 in Pollard v. E.I. duPont deNemours & Co., No. 00-763 that front pay is not an element of compensatory damages under 42 U.S.C. � 1981a and thus is not subject to the damages cap imposed by �1981a(b)(3). The opinion was written by Justice Thomas, who must be getting tired of being a relatively junior Justice after a full decade on the Court. The opinion was so well written, tightly reasoned, and cripplingly boring that all the other eligible Justices were constrained to join it rather than think about the case long enough to write an opinion oftheir own. The lone DuPont shareholder among them (Justice O’Connor) recused herself. There were also three grants. 1. Raygor v. Regents of the University of Minnesota, No. 00-1514. What happens when the Court wants to bloviate about the 11th Amendment but they’ve already addressed all the good questions? They grant on the truly obscure ones. The Minnesota Supreme Court held that a provision of the federal supplemental jurisdiction statute, 28 U.S.C. � 1367(d), that tolls the statute of limitations on state law claims while they are pending in federal court violates the 11th Amendment (at least when invoked againstnonconsenting states). Plaintiff seeks to revisit that determination. If that’s the best that’s out there, clearly this will be the last 11th Amendment question the Court will ever need to address. 2. Porter v. Nussle, No. 00-853. The 2nd Circuit held that a civil rights action in which a prisoner alleges that a guard assaulted him was not an “action with respect to prison conditions” within the meaning of the Prison Litigation Reform Act provision requiring exhaustion of administrative remedies before filing a suit (42 U.S.C.� 1997e(a)). The Connecticut AG seeks cert., noting that other courts of appeals have come down the other way. My prediction: The law-enforcement or prisoners’ rights lobby will loudly bemoan the result and the lawless action of the liberals/conservatives on the Court, and then things will go on precisely as they did before. 3. United States v. Arvizu, No. 00-1519, involves the police stop of a minivan on suspicion of immigrant smuggling that uncovered 125 pounds of marijuana. The district court found reasonable suspicion for the stop, but the court of appeals held that seven of the 10 factors on which the district court relied could not be considered as a matter of law: (1) “slowing down after spotting a law enforcement vehicle is an entirely normal response that is in no way indicative of criminal activity” and cannot contribute to reasonable suspicion of unlawful activity; (2) respondent’s failure to acknowledge police as he drove by; (3) the fact that children in the car engaged in the “odd act” of waving to police without looking at them; (4) “[t]he fact that one minivan stopped in the past month on the same road” contained contraband; (5) the officer’s failure to recognize the minivan as a local vehicle; (6) the fact that the minivan was “registered to an address in a block notorious for smuggling”; (7) the appearance that there was cargo on the floor of a minivan that was carrying adults and children. The case presents two questions: (1) Whether the court of appeals erroneously departed from the totality-of-the-circumstances test that governs reasonable-suspicion determinations under the Fourth Amendment by holding that seven facts observed by a law enforcement officer were entitled to no weight and could not be considered as a matter of law; and (2) whether, under the totality-of-the-circumstances test, the Border Patrol agent in this case had reasonable suspicion that justified a stop of a vehicle near the Mexican border. In the past, the Court has said you can consider just about anything in making a reasonable suspicion determination, so this seems destined for prompt reversal (in an opinion by the criminal procedure-lovingChief). Any lingering question about that fact is cleared up by the identity of the court of appeals (9th Circuit, natch) and the author (Stephen Reinhardt, joined by Michael Daly Hawkins and Henry Politz of the 5th Circuit). Alt-9. Elsewhere on the orders list: In a basically unprecedented move on a rehearing petition (which the Court ordinarily greets with hoots of derision), the Court “invited” the SG to file a response to the rehearing petition of Terry Nichols of the Oklahoma City bombing. (For those who aren’t familiar with this procedure, this is like when you’re a kid and yourdad “invites” you to mow the lawn.) My uncanny spider-senses tell me that this might have something to do with the thousands of pages the documents the FBI didn’t turn over to the defense in that case. Q: So Mr. Smartypants, what are you predicting for the January sitting now? A: In light of the authorships over the past week, Justice Kennedy WILL do the opinion for the Court in Nguyen v. INS, barring a post-conference vote flip. I don’t know what that portends for the outcome, because the last time a similar issue was raised ( Miller v. Albright) Justices Kennedy and O’Connor avoided the merits and went off on standing instead. Q: I’m looking for a lame and increasingly irritating tagline to wrap up a weekly column I write and then force on a large group of unwilling recipients. What do you suggest? –R. Ebert, Chicago, IL. A: That’s today’s baseball! These updates are not intended to reflect a lack of respect for any of the Justices, other jurists, their clerks, or Charalambos Theologis, but merely to inject some levity into the normally humdrum process of keeping abreast of legal developments. The views expressed herein do not necessarily represent the views of law.com, Baker Botts L.L.P., or, for that matter, the author. Your actual mileage may vary. Void where prohibited. Thank you. Please drive around. John Elwood is a partner with Baker Botts in Washington, D.C., specializing in appellate practice and white collar criminal defense. Prior to commencing private practice, Elwood clerked for Associate Justice Anthony M. Kennedy of the Supreme Court of the United States. He can be reached at [email protected].

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