First Monday in October

They're back.

It's the First Monday in October (title caps because it's a special day like Christmas Day or Flag Day or the Day of the Dead) which means the Supremes are in session.  (Well, the session is done for the day, but you know what I mean.)

God help the Republic.

As everyone who writes generally about the Court (think mainstream media) keeps pointing out, this year's docket, at least as so far set, seems to have less focus on corporations and big civil cases than in the last couple of years.  (Though the grizzly banging on the door is the Affordable Care Act.)  Rather, this is supposed to be the year (except for the Affordable Care Act) of criminal law.

God help the Republic.

Adam Liptak in his preview of the court's year (with reference to the Affordable Care Act), says that the focus is on First Amendment and criminal law.  He quotes Eric Freedman, law prof at Hofstra, fan of the First Amendment and important player in capital defense and especially capital habeas circles.

The Supreme Court has positioned itself to improve the quality of the criminal justice process from beginning to end.

Well, I suppose there's some truth to that.  Of course, it's also positioned itself to damage the quality of the criminal justice process from beginning to end.  (Not to mention, so I won't, the Affordable Care Act which of course is/isn't constitutional.)

Anyhow, as the term begins, a brief look at what will be up for oral argument this week.

Reynolds v. U.S. is a narrow issue.  

Because of how scared we are of them, sex offenders have to register and then there are all those notification provisions.  Along with the state requirements that are usually what we talk about, there are federal ones.  Reynolds registered as he was supposed to in Missouri, but when he moved to Pennsylvania, he didn't.  The feds said he had to, and brought charges. Reynolds said that the law can't be made retroactive to him until the Attorney General adopts rules that say it is, and while there is such a rule, he says it wasn't properly adopted.  (Does this seem sufficiently narrow?) 

The thing about narrow issues is that they sometimes morph.  The John Roberts who appeared before the Senate Judiciary Committee for confirmation hearings a few years ago emphasizing "judicial modesty" and the importance of not reaching out to get at issues not presented would never let that happen.  That John Roberts, of course, does not sit on the US Supreme Court.  The one who does, the one who's Chief Justice, has a different approach.

Of course, this case may generate a ruling exceptionally narrow and of little significance.  On the other hand.

Howes v. Fields deals with two things the Five Who Decide don't much like: Miranda and habeas.

OK, it's not really about habeas, that's just how the case got to the Court.  Here's the set up.  Randall Fields was doing time in a local Michigan jail for disorderly conduct when the corrections officers took him to a conference room where a couple of deputy sheriffs interrogated him about a sex offense with a minor.  They didn't give him Miranda warnings.

The formal rule of Miranda is that when you're in custody and questioned, the cops have to give you the warnings or what you say can't be used in court (and yes, it's more complicated than that and there are exceptions).  Clearly, Fields was in custody (he was in jail, after all).  But was he in custody for Miranda purposes?  You know, the kind of custody where he couldn't just leave.  After all, he could have just left.  Except he couldn't have.  Except the deputies told him he could.  Except that they also told him he could later - once corrections officers came to take him back to his cell where he would/wouldn't be in custody.

My head hurts.

Michigan courts didn't see a problem here.

The district court and the 6th Circuit did.

SCOTUS?  The smart money is that Fields will lose.  Why?  Because the He's-a-Fucking-Sex-Offender Rule which says he should never get relief will likely trump Miranda which the Five Who Decide thinks should never apply anyhow.  Oh, and it's the 6th Circuit, which always gets reversed.

Maples v. Thomas is the Cory Maples case I've written about before.

He's the guy who got screwed by high priced lawyers at Sullivan & Cromwell who dropped the ball on his case.  Maybe it's so egregious that SCOTUS will give him another shot.

But rules are rules and when your lawyer screws up, even if you didn't choose the lawyer and didn't want the screw up - well, somebody has to die.  And it ain't going to be the lawyers from S & C.

Martinez v. Ryan is about the right to counsel.

Here's the basic rule (spoiler alert - I'm oversimplifying again).  You're entitled to a lawyer when you'recharged with a crime and can be locked up.  Once you're convicted, if you have an absolute right to an appeal, you're entitled to a lawyer for it.  If you have a right to a second appeal or any other sort of thing, you're not.  You may get one.  Courts might be generous.  The state might authorize it.  But you have no federal constitutional right.

Here's the other basic rule.  You have a right to effective assistance of counsel at that trial and from that lawyer on a first appeal, by the way.  You're not entitled to effective assistance from any other lawyer you might have.  The measure of effectiveness is preposterously low, but that's a different issue.

So here's what happened.  Luis Martinez was on trial and convicted.  He wanted to argue that he was denied effective assistance of counsel at trial.  The only way to do that under Arizona law was by a post-conviction proceeding, not by direct appeal.  He had a lawyer for that proceeding, but the lawyer didn't raise that issue.  He tried to raise it later, and the Arizona courts said that he should have raised it before, so he was out of luck.  He tried to argue that his post-conviction lawyer was constitutionally ineffective, but nobody gave a rats ass because he wasn't entitled to have that lawyer do even a marginally good job.

Except that was the only time he could complain about his constitutionally ineffective trial counsel.   Except he didn't.

Except that was because . . . .

Aw hell.  So far, Martinez has drawn the short straw every time.

There are other cases up for argument this week, but if you think I'm going to write about Medicaid or copyright or whether a religious school can discriminate against its teachers on the basis of the "ministerial" exception to the American's with Disabilities Act, you're nuts.

And of course, there's no need to mention the Affordable Care Act.

Anyway, they're back.

God help the Republic.