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Alleyne v. United States

From Wikipedia, the free encyclopedia

Alleyne v. United States
Argued January 14, 2013
Decided June 17, 2013
Full case nameAllen Ryan Alleyne, Petitioner v. United States
Docket no.11-9335
Citations570 U.S. 99 (more)
133 S. Ct. 2151; 186 L. Ed. 2d 314
Opinion announcementOpinion announcement
Case history
PriorUnited States v. Alleyne, 457 F. App'x 348 (4th Cir. 2011)
Holding
Because mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an "element" of the crime that must be submitted to the jury.
Court membership
Chief Justice
John Roberts
Associate Justices
Antonin Scalia · Anthony Kennedy
Clarence Thomas · Ruth Bader Ginsburg
Stephen Breyer · Samuel Alito
Sonia Sotomayor · Elena Kagan
Case opinions
MajorityThomas, joined by Ginsburg, Breyer, Sotomayor, Kagan (Parts I, III–B, III–C, and IV); Ginsburg, Sotomayor, Kagan (Parts II and III–A)
ConcurrenceSotomayor, joined by Ginsburg, Kagan
ConcurrenceBreyer (in part)
DissentRoberts, joined by Scalia, Kennedy
DissentAlito
Laws applied
U.S. Const. amend. VI
This case overturned a previous ruling or rulings
Harris v. United States (2002)

Alleyne v. United States, 570 U.S. 99 (2013), was a United States Supreme Court case that decided that, in line with Apprendi v. New Jersey (2000), all facts that increase a mandatory minimum sentence for a criminal offense must be submitted to and found true by a jury, not merely determined to be true at a judge's discretion. The majority opinion was written by Justice Clarence Thomas, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.[1]

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Transcription

- "SUPREME COURT: THE TERM IN REVIEW," AN FJTN PROGRAM FOR JUDGES, STAFF ATTORNEYS, AND LAW CLERKS. NOW FROM THE TELEVISION STUDIOS OF THE FEDERAL JUDICIAL CENTER IN WASHINGTON, D.C., YOUR HOST, JOHN COOKE. - HELLO. I'M JOHN COOKE, DEPUTY DIRECTOR OF THE FEDERAL JUDICIAL CENTER. WELCOME TO THIS YEAR'S EDITION OF "SUPREME COURT: THE TERM IN REVIEW." TODAY, JULY 18th, WE ARE DOING THE PROGRAM LIVE, AND WE WILL TAKE AND ANSWER YOUR QUESTIONS DURING THE PROGRAM, BOTH BY PHONE AND EMAIL. AT THE BOTTOM OF YOUR SCREEN, YOU SHOULD SEE THE NUMBER YOU CAN CALL AND THE EMAIL ADDRESS TO WHICH YOU CAN SEND YOUR QUESTIONS. AT THE END OF EACH OF OUR PANELS, OUR FACULTY WILL TAKE ABOUT 5 MINUTES TO ANSWER YOUR QUESTIONS ON THE DECISIONS THEY'VE JUST ANALYZED. IF THERE ARE MORE QUESTIONS THAN WE CAN ANSWER IN THOSE 5 MINUTES, OUR FACULTY WILL TRY TO ANSWER THEM AFTER TODAY'S PROGRAM VIA EMAIL. AND TO THE EXTENT WE CAN, WE WILL POST THE QUESTIONS AND ANSWERS ON THE SAME WEBPAGE, WHERE A RECORDING OF THIS PROGRAM WILL BE AVAILABLE STARTING AUGUST 2. WHILE THE FORMAT OF OUR PROGRAM WILL BE DIFFERENT, ITS FOCUS AND PURPOSE WILL BE THE SAME AS EVER-- TO TELL YOU ABOUT THE DECISIONS REACHED BY THE SUPREME COURT THIS TERM THAT ARE MOST LIKELY TO AFFECT THE WORK OF FEDERAL JUDGES. AS USUAL, THE COURT DECIDED SOME CASES THAT ATTRACTED SOME NATIONAL AND INTERNATIONAL ATTENTION. THE DECISIONS INVOLVING SAME-SEX MARRIAGE, AFFIRMATIVE ACTION, VOTING RIGHTS, AND THE PATENTING OF HUMAN DNA ARE CERTAINLY PART OF THIS GROUP. THE COURT ALSO DECIDED SOME LESS HIGH-PROFILE BUT NO-LESS-IMPORTANT-TO-YOU CASES INVOLVING SEARCH AND SEIZURE, HABEAS CORPUS, THE POWERS OF FEDERAL COURTS, AND CLASS ACTION SUITS. WE'LL LOOK AT THOSE, TOO. THE COURT ISSUED 73 DECISIONS WITH SIGNED OPINIONS AFTER ORAL ARGUMENT THIS TERM AND 5 PER CURIAM DECISIONS. 21 CASES WERE DECIDED BY A VOTE OF 5-4. WE WILL DISCUSS 33 DECISIONS TODAY. THERE'S AN OUTLINE OF THE CASES WE'LL DISCUSS, IN ORDER OF DISCUSSION, AS WELL AS BRIEF SUMMARIES OF THE CASES WE WILL NOT DISCUSS ON THE WEBPAGE ON WHICH YOU'RE WATCHING THIS PROGRAM. THERE'S ALSO A LINK TO THE MATERIALS YOU'LL NEED TO APPLY FOR CLE CREDIT. WE'RE FORTUNATE TO HAVE OUR EXPERT FACULTY WITH US AGAIN TO EXPLORE AND EXPLAIN THIS TERM'S DECISIONS. THEY ARE ERWIN CHEMERINSKY, DEAN OF THE UNIVERSITY OF CALIFORNIA AT IRVINE SCHOOL OF LAW, PROFESSOR EVAN LEE OF THE HASTINGS COLLEGE OF LAW IN SAN FRANCISCO, PROFESSOR LAURIE LEVENSON OF LOYOLA LAW SCHOOL IN LOS ANGELES, AND PROFESSOR SUZANNA SHERRY OF THE VANDERBILT UNIVERSITY LAW SCHOOL. ALSO JOINING US WILL BE PROFESSOR JOHN THOMAS FROM GEORGETOWN UNIVERSITY LAW SCHOOL TO DISCUSS THIS TERM'S PATENT LAW DECISIONS. WE TALKED TO PROFESSOR THOMAS ABOUT THOSE CASES RECENTLY, AND WE WILL BE BRINGING YOU THAT INTERVIEW. THE CENTER'S OWN JIM CHANCE AND BETH WIGGINS WILL MODERATE OUR PROGRAM. OUR FIRST TOPIC: SEARCH AND SEIZURE. - SINCE 2009, WHEN MARYLAND BEGAN TO COLLECT DNA SAMPLES FROM ARRESTEES CHARGED WITH VIOLENT CRIMES AND BURGLARY, THERE HAVE BEEN 225 MATCHES, 75 PROSECUTIONS, AND 42 CONVICTIONS, INCLUDING THAT OF RESPONDENT KING. - WELL, THAT'S REALLY GOOD. I'LL BET YOU IF YOU CONDUCTED A LOT OF UNREASONABLE SEARCHES AND SEIZURES, YOU'D GET MORE CONVICTIONS, TOO. [LAUGHTER] THAT PROVES ABSOLUTELY NOTHING. - WELL, I--I THINK, JUSTICE SCALIA, IT DOES, IN FACT, POINT OUT THE FACT THAT THE STATUTE IS WORKING, AND, IN THE STATE'S VIEW, THE ACT IS CONSTITUTIONAL. - SO THAT'S ITS PURPOSE, TO ENABLE YOU TO IDENTIFY FUTURE CRIMINALS--THE PERPETRATORS OF FUTURE CRIMES. THAT'S THE PURPOSE OF IT? I THOUGHT THAT THAT WASN'T THE PURPOSE SET FORTH IN THE-- IN THE STATUTE. - NO, NOT--NOT JUST TO IDENTIFY PEOPLE. THE PURPOSE OF THE STATUTE IS TO ENABLE THE STATE TO IDENTIFY PERPETRATORS OF SERIOUS CRIMES AND--AND TO USE THE INFORMATION TO MAKE BAIL DETERMINATIONS FOR PEOPLE WHO ARE VALIDLY IN THEIR CUSTODY. - HELLO. I AM JIM CHANCE, AND I'M HERE WITH MY COLLEAGUE BETH WIGGINS AND OUR FACULTY-- A TERRIFIC FACULTY-- TO TALK WITH YOU ABOUT FIVE SEARCH AND SEIZURE DECISIONS THE COURT REACHED THIS TERM. WE HOPE YOU'LL TAKE ADVANTAGE OF OUR BEING LIVE THIS YEAR TO CALL OR EMAIL US WITH ANY QUESTIONS YOU MAY HAVE ABOUT THESE DECISIONS. THAT LITTLE BIT OF ARGUMENT YOU HEARD JUST NOW WAS FROM ONE OF THE TERM'S MOST DISCUSSED DECISIONS, "MARYLAND V. KING." TELL US WHAT IT WAS ABOUT, LAURIE. - WELL, JIM, IN 2009 ALONZO KING WAS ARRESTED IN MARYLAND ON CHARGES OF FIRST- AND SECOND-DEGREE ASSAULT. WHEN HE WAS ARRESTED, THEY TOOK A SWAB OF HIS MOUTH AND GOT A DNA SAMPLE. AND THEY RAN THAT DNA SAMPLE AND FOUND OUT THAT HE WAS WANTED FOR A 2003 RAPE. THEY CONFIRMED IT, AND HE WAS CONVICTED OF THAT RAPE. BUT THE MARYLAND HIGH COURT OVERTURNED THE CONVICTION, SAYING THAT THE DNA TESTING WAS A SUSPICIONLESS SEARCH IN VIOLATION OF THE FOURTH AMENDMENT. - AND WHAT DID THE SUPREME COURT DECIDE, EVAN? - IT REVERSED THE MARYLAND COURT OF APPEALS, 5 TO 4. AT ISSUE HERE WAS THE MARYLAND DNA COLLECTION ACT, WHICH ALLOWS POLICE TO COLLECT DNA SAMPLES FROM ANY PERSON WHO'S CHARGED WITH A CRIME OF VIOLENCE OR AN ATTEMPT TO COMMIT A CRIME OF VIOLENCE OR BURGLARY OR AN ATTEMPT TO COMMIT BURGLARY. BUT THE DNA CAN'T BE PROCESSED OR PLACED IN A DATABASE UNTIL THE PERSON IS ARRAIGNED. AND THAT'S IMPORTANT BECAUSE OF THE DISAGREEMENT BETWEEN THE MAJORITY AND THE DISSENTERS REGARDING THE USE OF THE DNA. HERE THE COURT AGREED THAT THE CHEEK SWAB WAS A SEARCH WITHIN THE MEANING OF THE FOURTH AMENDMENT, BUT IT FOUND THAT IT WAS A NEGLIGIBLE INTRUSION AND THEREFORE REASONABLE GIVEN THE IMPORTANT GOVERNMENTAL JUSTIFICATIONS FOR THE SEARCH, AMONG WHICH WERE IDENTIFICATION OF THE ARRESTEE AND BEING ABLE TO CHECK FOR PRIORS IN DECIDING THE APPROPRIATENESS OF BAIL. THE MAJORITY REPEATEDLY COMPARED A CHEEK SWAB TO TAKING FINGERPRINTS OR PICTURES OF ARRESTEES, BUT SAID THAT THE CHEEK SWABS WERE EVEN MORE JUSTIFIABLE BECAUSE THEY WERE EVEN MORE ACCURATE, AT LEAST THAN FINGERPRINTS. THE MAJORITY ALSO REASONED THAT THE CHEEK SWAB WAS LESS INTRUSIVE THAN, LET'S SAY, A BLOOD DRAW AND THAT PEOPLE IN CUSTODY HAVE A REDUCED EXPECTATION OF PRIVACY AND ARE INEVITABLY SUBJECTED TO SOME LEVEL OF INDIGNITY. - DIDN'T THE MAJORITY ALSO TALK ABOUT THE PROTECTIONS THAT WERE AVAILABLE IN THE MARYLAND LAW? - IT DID. UNDER THIS LAW, THE SAMPLE IS ONLY SUPPOSED TO BE USED FOR IDENTIFICATION PURPOSES. IF THE CHARGES ARE FOUND NOT TO BE SUPPORTED BY PROBABLE CAUSE OR IF THE ARRESTEE IS NOT CONVICTED, THEN THE SAMPLE IS SUPPOSED TO BE DESTROYED. AND IF THE CONVICTION IS REVERSED OR VACATED WITHOUT A NEW TRIAL, THE SAMPLE IS SUPPOSED TO BE DESTROYED. - IT'S ALSO WORTH NOTING THERE'S AN UNUSUAL SPLIT AMONG THE JUSTICES. JUSTICE KENNEDY WROTE THE OPINION FOR THE COURT. HE WAS JOINED BY CHIEF JUSTICE ROBERTS, JUSTICE THOMAS, JUSTICE BREYER, AND JUSTICE ALITO. JUSTICE SCALIA WROTE A VEHEMENT DISSENT, WHICH WAS JOINED BY JUSTICES GINSBURG, SOTOMAYOR, AND KAGAN. - HE DID. AND HE HAD A GREAT LINE, THE LINE OF THE CASE. AS FOR THE MAJORITY'S ARGUMENT THAT THE DNA IS USED TO IDENTIFY THE ARRESTEE, HE SAID THAT THAT "TAXES THE CREDULITY OF THE CREDULOUS." - I THINK HE SAID THAT BECAUSE, IN FACT, THIS TESTING OF THE DNA DIDN'T TAKE PLACE UNTIL AFTER THE ARRAIGNMENT AND AFTER THE BAIL HEARING. AND BY THAT TIME, THEY DON'T REALLY NEED IT FOR IDENTITY PURPOSES. - YEAH, ACCORDING TO THE DISSENTERS, THE REAL REASON FOR GETTING THE SAMPLE WAS TO INVESTIGATE IF HE HAD EVER COMMITTED OTHER CRIMES. AND THE DISSENT STRESSED THAT THE COURT HAS NEVER BEFORE ALLOWED SUSPICIONLESS SEARCHES PURELY TO FACILITATE THE GENERAL DETECTION OF CRIME. - AND ONE OF THE CONCERNS IS THAT THERE'S NO MAJOR PRINCIPLE SPELLED OUT IN THE MAJORITY'S DECISION OF HOW YOU LIMIT THIS TO SERIOUS CRIMES. - ONE INTERESTING THING ABOUT THE COURT'S OPINION IS THAT WHILE THE MARYLAND LAW LIMITS TAKING THE DNA SAMPLE TO PEOPLE WHO ARE ARRESTED FOR SERIOUS CRIMES, THE MAJORITY DOES CITE TIMOTHY McVEIGH AND A COUPLE OF OTHER INFAMOUS CASES FOR THE PROPOSITION THAT SOME OF THE MOST HEINOUS CRIMINALS HAVE BEEN STOPPED FOR MINOR TRAFFIC VIOLATIONS. SO THE QUESTION THEN ARISES, IF AT SOME POINT IN THE FUTURE-- PERHAPS--THE COURT MIGHT EVENTUALLY ALLOW THIS KIND OF DNA COLLECTION FROM ANYBODY WHO'S HAD A RUN-IN WITH THE LAW. - GOOD. THANKS, EVAN. OUR NEXT DECISION, "MISSOURI V. McNEELY," ALSO DEALS WITH THE QUESTION OF WHEN POLICE NEED A WARRANT TO INTRUDE ON AN ARRESTEE'S BODILY INTEGRITY TO GATHER EVIDENCE. THIS TIME, THE ISSUE IS DRAWING BLOOD IN A DUI ARREST. TYLER McNEELY WAS STOPPED BY POLICE, AND THEN THEY OBSERVED HIM BREAKING THE SPEED LIMIT AND DRIVING HIS TRUCK ERRATICALLY. HE GOT OUT OF THE CAR, FAILED A FIELD SOBRIETY TEST. AND WHEN HE WAS TAKEN TO A HOSPITAL FOR A BLOOD DRAW, HE REFUSED HIS CONSENT, WITHHELD CONSENT. THE TECHNICIAN TOOK THE BLOOD ANYWAY. AND McNEELY MOVED TO SUPPRESS THE BLOOD SAMPLE EVIDENCE AS A WARRANTLESS SEARCH. MISSOURI'S SUPREME COURT FINALLY FOUND FOR THE STATE, CITING THE U.S. SUPREME COURT'S DECISION IN "SCHMERBER V. CALIFORNIA" THAT UPHELD A WARRANTLESS BLOOD TEST UNDER AN EXIGENT CIRCUMSTANCES EXCEPTION. SO, EVAN DID THE COURT FIND THAT THE DECISION IN THE "SCHMERBER" CASE ALSO DECIDED THIS ONE? - NO. THE COURT SAID IT DIDN'T. BUT THAT MAY BE THE ONLY REALLY DEFINITIVE THING THAT WE CAN SAY ABOUT THIS CASE BECAUSE THIS IS ONE OF THOSE CASES WHERE THE COURT SORT OF DIVIDED AMONG MULTIPLE FAULT LINES. MISSOURI HERE ARGUED FOR A PER SE RULE THAT ANYONE ARRESTED ON SUSPICION OF DRUNK DRIVING IS SUBJECT TO A BLOOD DRAW ON THE THEORY THAT THE NATURAL DISSIPATION OF ALCOHOL IN THE BLOODSTREAM CREATES AN EXIGENT CIRCUMSTANCE. THE MAJORITY, WITH JUSTICE SOTOMAYOR WRITING, REJECTED ANY KIND OF PER SE RULE AND INSTEAD SAID THAT ANY EXIGENT CIRCUMSTANCE RULING HAS TO BE BASED ON THE TOTALITY OF THE CIRCUMSTANCES. THE COURT DISTINGUISHED THIS CASE FROM "SCHMERBER" BECAUSE "SCHMERBER" HAD INVOLVED A CAR ACCIDENT WHERE THE ARRESTEE WAS TAKEN TO THE HOSPITAL FOR TREATMENT. THERE WAS NO TIME TO GET A WARRANT BEFORE THE ALCOHOL NATURALLY DISSIPATED IN THE BLOODSTREAM. ON THAT RATIONALE, THE SEARCH HERE WAS OK. - BUT IN THIS CASE, THE POLICE DIDN'T CLAIM ANY OTHER EXIGENT CIRCUMSTANCES OTHER THAN THE DISSIPATION OF THE ALCOHOL IN THE BLOOD. - NO, THEY DIDN'T, ACTUALLY. THEY THOUGHT THAT THEY COULD GO WITH THE PER SE ARGUMENT UNDER "SCHMERBER," BUT THEY WERE WRONG. - THE COURT ALSO NOTED THERE HAVE BEEN SIGNIFICANT ADVANCES IN THE EASE OF GETTING WARRANTS SINCE 1966, WHEN "SCHMERBER" WAS DECIDED. - YEAH. THAT'S TRUE. NOW YOU CAN GET A WARRANT BY TELEPHONE, BY EMAIL, BY VIDEO CONFERENCING. SO THERE ARE A LOT MORE OPTIONS THAN PREVIOUSLY EXISTED. - WELL, EVAN YOU SAID THAT THE COURT SPLIT ALONG DIFFERENT LINES. TELL US ABOUT THAT. - WELL, I DON'T WANT TO PARSE IT-- I DON'T WANT TO PUT THE MICROSCOPE ON IT TOO MUCH, BUT THERE ARE SOME MAJOR FAULT LINES HERE. FIRST OF ALL, AS WE SAID, THE HOLDING WAS THAT THE DECISION, WHETHER A BLOOD DRAW IN A DUI CASE REQUIRES A WARRANT-- THAT DECISION HAS TO BE BASED ON THE TOTALITY OF THE CIRCUMSTANCES. THEN SECOND, THERE WAS A PARTIAL CONCURRENCE AND DISSENT BY THE CHIEF JUSTICE, JOINED BY JUSTICES BREYER AND ALITO, THAT SAID THEY WERE TROUBLED BY THE LACK OF DIRECTION, BY THE LACK OF GUIDANCE THAT THE HOLDING GIVES TO POLICE OFFICERS FOR WHAT WILL HAVE TO BE A CASE-BY-CASE TOTALITY OF THE CIRCUMSTANCES' DETERMINATION. THE CONCURRENCE SUGGESTS THAT THE RULE SHOULD BE THAT A WARRANT IS REQUIRED IF THERE IS TIME TO GET ONE. AND IT'S NOT REQUIRED IF TIME DOESN'T PERMIT IT BEFORE THAT ALCOHOL IS GOING TO DISSIPATE FROM THE BLOODSTREAM. - BUT THERE IS ALSO THIS PLURALITY, WITH JUSTICES SCALIA, GINSBURG, AND KAGAN AND SOTOMAYOR THAT BASICALLY REJECT WHAT THE CHIEF JUSTICE SUGGESTED IN HIS CONCURRENCE, WHICH WAS THAT IF THEY CAN'T GET A WARRANT BY THE TIME THEY GET TO THE HOSPITAL, THEN THERE'S AN EXCEPTION. AND THIS PLURALITY SAYS, THAT SHOULDN'T BE THE RULE. IT SHOULDN'T MATTER WHETHER SOMEBODY IS STOPPED NEAR A HOSPITAL OR NOT. IT HAS TO BE THE TOTALITY OF THE CIRCUMSTANCES. - YEAH, THE PLURALITY SAYS-- AND I QUOTE HERE-- "WE HAVE NEVER RETREATED FROM OUR RECOGNITION "THAT ANY COMPELLED INTRUSION INTO THE HUMAN BODY "IMPLICATES SIGNIFICANT, CONSTITUTIONALLY PROTECTED PRIVACY INTERESTS." AND I THINK THE QUESTION NOW IS, IS THAT STILL TRUE AFTER "MARYLAND V. KING"? - LAURIE, WHAT'S THE BOTTOM LINE HERE FOR JUDGES? - WELL, I THINK THE BOTTOM LINE IS, EVEN THOUGH THERE'S NO FIRM RULE BY FAR IN THIS CASE, THAT IF THE JUDGES GO THROUGH SOME OF THE FACTORS THAT WOULD APPLY--WHERE DOES THE ARREST TAKE PLACE? IS THERE A CONCERN OVER DISSIPATION OF THE ALCOHOL? IS THERE AN ACCIDENT? WHAT OTHER FACTORS? IF THEY GO THROUGH THAT, THEY'RE LIKELY TO BE UPHELD. - THANKS. NOW WE TURN TO TWO CASES ASKING WHEN THE POLICE NEED A WARRANT TO USE DRUG SNIFFING DOGS. IN THE FIRST CASE, "FLORIDA V. JARDINES," MIAMI POLICE RECEIVED AN UNVERIFIED TIP THAT JOELIS JARDINES WAS GROWING POT AT HIS HOUSE. A VISUAL INSPECTION OF THE HOME DIDN'T TURN ANYTHING UP, BUT A K-9 DOG BROUGHT ONTO JARDINES' FRONT PORCH ALERTED TO THE PRESENCE OF THE DRUG AT HIS FRONT DOOR. SO POLICE USED THAT INFORMATION TO GET A WARRANT AND IN A SEARCH DISCOVERED SOME MARIJUANA PLANTS IN THE HOUSE. JARDINES MOVED TO SUPPRESS THE EVIDENCE ON THE GROUNDS THAT THE DOG SNIFF WAS A WARRANTLESS FOURTH AMENDMENT SEARCH WITHOUT PROBABLE CAUSE. SO, LAURIE, WAS THE SNIFF A SEARCH? - IT WAS, ACCORDING TO THE MAJORITY IN THIS CASE. AND JUSTICE SCALIA WROTE THE OPINION BUT NOT FOR THE REASONS THAT MANY PEOPLE THINK. JUSTICE SCALIA DID NOT RELY UPON THE "KATZ" STANDARD OF A REASONABLE EXPECTATION OF PRIVACY. INSTEAD, HE WENT BACK TO THE THEORY THAT HE LAID OUT RECENTLY IN THE "JONES" DECISION, SAYING THAT THIS WAS A TRESPASS. WHEN THE DOG AND THE OFFICERS WENT THROUGH THE CURTILAGE UP TO THE DOOR, THAT, IN FACT, WAS A TRESPASS. AND THAT TRIGGERED A SEARCH UNDER THE FOURTH AMENDMENT. - BUT CAN'T THE POLICE GO UP THROUGH ANYBODY'S CURTILAGE AND GO KNOCK ON THE DOOR AND ASK TO SPEAK TO SOMEONE ANYTIME? - WELL, SUZANNA, NOT JUST THE POLICE, BUT IF YOU THINK ABOUT PEDDLERS, HAWKERS, EVEN THOSE GIRL SCOUTS COMING UP TO SELL COOKIES. WHAT THE COURT SAID IS, WHEN THEY DO THAT, THAT'S SORT OF A VISITOR. BUT WHEN THE POLICE COME DOING THAT WITH A DOG, THAT'S SNOOPING. - JUSTICE KAGAN WROTE A CONCURRING OPINION JOINED BY JUSTICES GINSBURG AND SOTOMAYOR, WHEN SHE ARGUED THE FOCUS SHOULD BE ON THE INVASION OF PRIVACY RATHER THAN TRESPASS AND PROPERTY RIGHTS. - YEAH, JUSTICE KAGAN WOULD HAVE FOUND THE COURT'S DECISION IN "KYLLO V. UNITED STATES" CONTROLLING, WHICH, INTERESTING--JUSTICE SCALIA WROTE THAT OPINION. THE PEOPLE IN THE CONCURRENCE, THE JUSTICES IN THE CONCURRENCE, WOULD HAVE SAID THAT A DRUG-SNIFFING DOG, LIKE THE HEAT DETECTION DEVICE THAT WAS INVOLVED IN "KYLLO," IS A DEVICE NOT IN GENERAL PUBLIC USE, THAT'S EMPLOYED TO OBTAIN THE DETAILS OF THE HOME THAT WOULD OTHERWISE BE UNKNOWABLE WITHOUT A PHYSICAL INTRUSION. - BUT I THINK EVEN MORE THAN "KYLLO" WHAT THE CONCURRENCE IS SAYING IS THAT THE COURT SHOULD BE USING THAT "KATZ" STANDARD OF REASONABLE EXPECTATION OF PRIVACY. - OK, THAT'S THE CONCURRENCE. TELL US ABOUT THE DISSENT. - WELL, YES. JUSTICE ALITO WRITING FOR HIMSELF, CHIEF JUSTICE ROBERTS AND KENNEDY AND BREYER, SAID, "NO. WE SHOULD NOT GO IN THE DIRECTION AT ALL OF THIS FOURTH AMENDMENT TRESPASS LAW," THAT, IN FACT, THERE WAS NO COMMON LAW AGAINST DOGS TRESPASSING. AND HERE THERE WAS NO REASONABLE EXPECTATION OF PRIVACY. OTHER PEOPLE COULD COME UP THE CURTILAGE. SO COULD THE POLICE. - IN OUR SECOND K-9 CASE, "FLORIDA V. HARRIS," THE QUESTION WASN'T WHETHER THE K-9 OFFICER WAS ALLOWED TO LET HIS DOG SNIFF BUT WHETHER THE DOG'S REACTION WAS ENOUGH TO PROVIDE PROBABLE CAUSE FOR A SEARCH. OR TO USE A PHRASE IN THE COURT'S UNANIMOUS OPINION, "WAS THE SNIFF UP TO SNUFF?" A FLORIDA SHERIFF'S DEPUTY PULLED OVER CLAYTON HARRIS' TRUCK BECAUSE OF AN EXPIRED LICENSE PLATE. MR. HARRIS LOOKED NERVOUS AND SHAKY, AND THERE WAS A BEER IN THE CUP HOLDER, AND SO FORTH. SO THE DEPUTY BROUGHT OUT HIS DOG ALDO FOR A FREE AIR SNIFF. ALDO ALERTED TO THE DRIVER'S SIDE DOOR HANDLE. THE DEPUTY THOUGHT THAT WAS SUFFICIENT PROBABLE CAUSE, BUT A SEARCH TURNED UP NO DRUGS THAT ALDO WAS TRAINED TO DETECT. INSTEAD WHAT THE OFFICER FOUND WERE INGREDIENTS FOR MAKING METHAMPHETAMINE, WHICH ALDO WAS ALSO TRAINED TO DETECT. NOW, HARRIS WAS CHARGED WITH POSSESSION OF THE INGREDIENTS FOR MANUFACTURING METH. HE GETS BAILED OUT ON THAT CHARGE. AND ON ANOTHER DAY HE GETS STOPPED AGAIN-- SAME DEPUTY AND ALDO, THIS TIME FOR A BROKEN TAIL LIGHT. ALDO AGAIN ALERTS TO THE DOOR HANDLE, BUT THIS TIME THE SEARCH TURNS UP NOTHING. AND WHEN HARRIS COMES UP FOR TRIAL ON THE FIRST CHARGE, HE MOVES TO SUPPRESS THE METH INGREDIENTS ON THE GROUNDS THAT ALDO'S ALERTING WHEN THE DEPUTY FAILED TO FIND THE DRUGS THAT ALDO WAS TRAINED TO DETECT DID NOT PROVIDE PROBABLE CAUSE FOR A SEARCH. SO, LAURIE, WHAT HAPPENED AT THAT TRIAL? - WELL, AT TRIAL, ALDO'S TRAINER WAS UP THERE, AND HE WAS TESTIFYING ABOUT THE TRAINING OF THE DOG AND THE CERTIFICATION OF THE DOG. IT TURNS OUT THAT THAT CERTIFICATION HAD LAPSED. AND THE RECORDS WERE A BIT INCOMPLETE BECAUSE THEY ONLY FOCUS ON TIMES WHERE HIS ALERTS LED TO ARRESTS AND MAYBE WHEN THEY DIDN'T. SO THE TRIAL COURT DID FIND PROBABLE CAUSE, BUT THE FLORIDA SUPREME COURT SAID, "NO, THESE RECORDS WERE INADEQUATE," AND THAT WAS NOT ENOUGH FOR PROBABLE CAUSE. - AND WHAT DID THE U.S. SUPREME COURT FIND? - JUSTICE KAGAN DID WRITE FOR A UNANIMOUS COURT. AND SHE SAID, "NO. PROBABLE CAUSE REMAINS A FLEXIBLE STANDARD, A TOTALITY OF THE CIRCUMSTANCES." AND SO THERE DON'T HAVE TO BE PARTICULAR RECORDS FOR THE DOG. YOU CAN LOOK AT IT IN CONTEXT. AND IN THIS SITUATION, THE DOG DID HAVE TRAINING. IT HAD HAD A CERTIFICATION. AND THERE WAS PROBABLY A GOOD EXPLANATION FOR WHY EVEN THE DOG DID A FALSE POSITIVE ALERT. THIS IS SOMEBODY WHO'S DEALING WITH METHAMPHETAMINES. AND THAT CAN BE LEFT ON THE HANDLES AS WELL. AS THE COURT SAID IN PROBABLY THE MOST FAMOUS LINE OF THIS TERM, "THE SNIFF WAS UP TO SNUFF." - THANKS, LAURIE. OUR FINAL DECISION, "BAILEY V. U.S." RAISED THE QUESTION OF WHEN AND WHERE PEOPLE CAN BE DETAINED INCIDENT TO A SEARCH. POLICE WITH A WARRANT WERE ABOUT TO SEARCH AN APARTMENT WHERE THEY HAD BEEN TIPPED OFF. THERE WAS A HEAVYSET BLACK MALE WITH SHORT HAIR KNOWN AS "POLO," AND HE WAS IN POSSESSION OF AN ILLEGAL GUN. AS THEY APPROACHED THE APARTMENT BUILDING, THEY SAW TWO MEN, BOTH OF WHOM FIT POLO'S DESCRIPTION, EXITING THE BUILDING. THEY GOT IN A CAR. THEY DROVE AWAY. ONE SET OF DETECTIVES CONDUCTED THE SEARCH, AND A SECOND PAIR FOLLOWED THE TWO MEN IN THE CAR. AND AFTER A LITTLE LESS THAN A MILE, THEY STOPPED THE CAR AND ORDERED THE TWO MEN TO GET OUT. AND THEY PATTED THEM DOWN. THEY FOUND A SET OF KEYS IN BAILEY'S POCKET, ONE OF WHICH OPENED THE APARTMENT DOOR. A GUN AND DRUGS WERE FOUND IN THE APARTMENT. AND BAILEY CLAIMED HIS DETENTION INCIDENT TO A SEARCH WAS UNREASONABLE BECAUSE HE WASN'T IN THE VICINITY OF THE SEARCH WHEN HE WAS STOPPED. EVAN, WHAT DID THE COURT SAY? - THE COURT SAID THAT THE SEARCH WAS UNREASONABLE. THE QUESTION HERE WAS WHETHER THE COURT'S 1981 DECISION IN "MICHIGAN V. SUMMERS," WHICH ALLOWED A DETENTION PURSUANT TO THE EXECUTION OF A SEARCH WARRANT, CONTROLLED IN THIS CASE. AND THE COURT SAID IT DID NOT. WHILE THE SECOND CIRCUIT HAD RULED AGAINST BAILEY BECAUSE THE OFFICERS IN ITS OPINION HAD STOPPED BAILEY AND HIS FRIEND, "AS SOON AS REASONABLY PRACTICABLE," THE SUPREME COURT REJECTED THAT TEMPORAL INTERPRETATION OF "SUMMERS" IN FAVOR OF A GEOGRAPHICAL INTERPRETATION. SO THAT ACCORDING TO THE MAJORITY, NONE OF THE LAW ENFORCEMENT INTERESTS THAT JUSTIFIED THE "SUMMERS" EXCEPTION APPLIED IN THIS CASE. BAILEY WAS TOO FAR AWAY FROM THE APARTMENT TO HAVE BEEN A THREAT TO THE OFFICERS. HE WAS TOO FAR AWAY TO HAVE EITHER HINDERED OR HELPED THE EXECUTION OF THE SEARCH. AND "PREVENTING FLIGHT" COULDN'T BE USED AS A RATIONALE, BECAUSE IF YOU USED IT HERE, YOU COULD USE IT ANYWHERE. I MEAN, 10 MILES, 100 MILES, AS LONG AS THERE WAS A FLIGHT RISK. - DID THE SUPREME COURT GIVE GUIDANCE TO THE LOWER COURTS FOR HOW TO DETERMINE WHAT'S "IMMEDIATE VICINITY" FOR THESE DETENTIONS INCIDENT TO SEARCH? - ERWIN, THE SUPREME COURT JUST USED THAT WORD OF "IMMEDIATE VICINITY" AND DIDN'T REALLY DEFINE IT. BUT I DO THINK THAT THERE ARE SOME FACTORS THEY SUGGESTED YOU CAN LOOK AT WHETHER IT'S WITHIN THE LAWFUL LIMITS OF THE PREMISES, WHETHER YOU CAN SEE THE PREMISES. AND IF YOU HAVE A SUSPECT WHO STARTS ENGAGING IN ACTUAL FLIGHT FROM THAT LOCATION, THAT'S GOING TO CREATE REASONABLE SUSPICION AND ALLOW A DETENTION. - SO WHAT WAS THE DISSENT'S PROBLEM? - WELL, THE THREE DISSENTERS WERE JUSTICES BREYER, ALITO, AND THOMAS. AND THEY FELT THAT "IMMEDIATE VICINITY" DIDN'T FURNISH CATEGORICAL LIMITS WHEN THE INTERPRETATION OF "IMMEDIATE VICINITY" WAS GOING TO TURN ON A MULTI-FACTOR TEST. JUSTICE BREYER WOULD INSTEAD HAVE ENDORSED THE SECOND CIRCUIT'S "AS SOON AS REASONABLY PRACTICABLE" FORMULATION. - ALL RIGHT. WE HAVE TIME NOW FOR A FEW QUESTIONS. BETH? - YES. WE HAVE ONE EMAIL QUESTION FROM SOUTH DAKOTA. IT CONCERNS THE TWO DOG SNIFF CASES. IN THOSE CASES, "THE COURT BASED ONE DECISION ON THE THEORY "THAT THE POLICE HAD INVADED "THE CONSTITUTIONALLY-PROTECTED CURTILAGE OF THE DEFENDANT'S HOME." BUT THEY BASED A SECOND DECISION ON PROBABLE CAUSE BEING A FLEXIBLE, COMMON-SENSE STANDARD--GENERAL-- JUDGED BY THE TOTALITY OF THE CIRCUMSTANCES. SO THE QUESTION IS, IS, "WHAT DOES THIS MEAN "FOR THE USE OF THE REASONABLE EXPECTATION OF PRIVACY STANDARD IN SEARCH AND SEIZURE CASES?" LET ME GO TO THIS SIDE OF THE TABLE. - LET ME JUMP IN, BETH. I ACTUALLY THINK WE'RE DEALING A LITTLE BIT WITH APPLES AND ORANGES, BECAUSE I THINK THE FIRST STEP IN THE ANALYSIS IS WHETHER THERE HAS BEEN A SEARCH. AND THERE IS THIS TENSION GOING ON, WHETHER WE'RE GOING TO CONTINUE TO USE JUST A "KATZ" STANDARD, REASONABLE EXPECTATION OF PRIVACY, OR WHETHER WE CONTINUE TO ADD ON TO THAT JUSTICE SCALIA'S TRESPASS THEORY. IT'S ONLY AFTER THE COURT SAYS THAT TO ACTUALLY HAVE A FOURTH AMENDMENT SEARCH, YOU GET TO THE SECOND ISSUE, WHICH IS IN THE SECOND DOG CASE, WHICH IS WHAT IS PROBABLE CAUSE. AND THERE I THINK IT REMAINS VERY MUCH THE SAME. THE COURT IS EMPHASIZING FLEXIBLE APPROACH, TOTALITY OF THE CIRCUMSTANCES. - THANK YOU. - ANYONE ELSE? - WE'RE GOING TO BE BACK IN A MOMENT WITH A DISCUSSION OF SOME HABEAS AND SIXTH AMENDMENT DECISIONS. - SO IF THE DISTRICT COURT SAYS, WELL, THERE'S A LITTLE BIT HERE, AND I CAN'T RULE OUT THE POSSIBILITY THAT THERE MIGHT BE A LOT MORE THAT'S LOCKED IN THE PETITIONER'S MIND, BUT HE IS UNABLE TO PROVIDE IT BECAUSE HE IS INCOMPETENT, THEN I'M GOING TO GRANT A STAY UNTIL HE IS RESTORED TO COMPETENCE; AND, THEN THAT WOULD BE INSULATED FROM BEING OVERTURNED ON APPEAL BY ABUSE OF DISCRETION STANDARD. THAT'S WHAT YOU'RE ARGUING? - THAT'S--THAT'S CORRECT, JUSTICE ALITO. THAT WOULD BE SOMETHING-- - DO YOU THINK THAT IS CONSISTENT WITH AEDPA; THAT CONGRESS, KNOWING, IN PARTICULAR, THAT A LOT OF DISTRICT JUDGES AND A LOT OF COURT OF APPEALS JUDGES DON'T LIKE THE DEATH PENALTY AND WILL GO TO SOME LENGTH TO PREVENT THE IMPOSITION OF THAT SENTENCE, THAT WE'RE JUST GOING TO LEAVE THAT ALL TO THE DISCRETION OF EVERY INDIVIDUAL DISTRICT JUDGE? - I THINK IT IS CONSISTENT WITH AEDPA, YOUR HONOR, BECAUSE OF THIS COURT'S RECENT JURISPRUDENCE IN "MARTINEZ," IN "HOLLAND," IN "RHINES," WHICH MAKE CLEAR THAT AEDPA DID NOT PURSUE FINALITY AT ALL COST. IT DID NOT ELIMINATE THE DISCRETION, THE EQUITABLE DISCRETION OF THE DISTRICT COURTS THAT THEY TRADITIONALLY ENJOYED, AS THIS COURT STATED IN "HOLLAND." AND AS THIS COURT STATED IN "MARTINEZ," THE COURT IS CONCERNED THAT THERE COULD BE CLAIMS THAT NO COURT WILL HAVE HEARD, NOT THE STATE COURT, NOT THE FEDERAL COURT. - TWO CASES THIS TERM-- "TIBBALS V. CARTER" AND "RYAN V. GONZALEZ," ASKED WHETHER A STATE PRISONER ON DEATH ROW HAS A RIGHT TO HAVE HIS FEDERAL HABEAS PROCEEDINGS STAYED WHEN HE IS ADJUDGED INCOMPETENT. WE ARE GOING TO LOOK NOW AT THE DECISION REACHED BY THE COURT IN "RYAN V. GONZALEZ." LAURIE, FOLLOWING THE "GONZALEZ" DECISION, WOULD EITHER CARTER OR GONZALEZ HAVE THEIR PROCEEDINGS STAYED? - NO, ABSOLUTELY NOT. AND, IN FACT, JUSTICE THOMAS WROTE FOR A UNANIMOUS COURT, AND HE TOOK A LOOK AT TWO SECTIONS OF THE FEDERAL CODE-- SECTIONS 3599 AND 4241-- AND SOME APPELLATE DECISIONS INTERPRETING THEM. SO THE NINTH CIRCUIT HAD INTERPRETED 3599 AS HAVING THIS RIGHT TO BE COMPETENT. AND THE SIXTH CIRCUIT HAD INTERPRETED 4241 AS FINDING THE COMPETENCY. BUT AS JUSTICE THOMAS WROTE, NEITHER STATUTE DOES THAT. 3599 ONLY GUARANTEES FEDERAL HABEAS PETITIONERS ON DEATH ROW THE RIGHT TO FEDERALLY FUNDED COUNSEL. AND THEN WHEN YOU LOOK AT 4241, THAT PROVIDES A RIGHT TO BE COMPETENT, BUT ONLY FOR TRIAL AND SENTENCING, NOT HABEAS, AND ONLY APPLIES TO FEDERAL PRISONERS IN ANY CASE. SO THESE STATUTES DIDN'T WORK. - YEAH. ANOTHER RATIONALE THAT THE COURT POINTED OUT WAS THAT 2254 PROCEEDINGS ARE LIMITED TO THE RECORD THAT WAS ACTUALLY IN FRONT OF THE STATE COURT. SO THAT ANYTHING NEW THAT THE INMATE MIGHT HAVE PROVIDED COULDN'T BE CONSIDERED IN ANY EVENT FOLLOWING THE SUPREME COURT'S 2011 DECISION IN "CULLEN V. PINHOLSTER." - BUT THIS DOESN'T MEAN THAT A COURT CAN'T EVER STOP A HABEAS PROCEEDING FOR LACK OF COMPETENCE. - NO, ACTUALLY IT JUST MEANS THAT IT CANNOT ROUTINELY STAY THESE FOR MENTAL COMPETENCY DETERMINATIONS. BUT THE COURT HAS SOME DISCRETION-- TO GRANT A STAY IN A CASE IF IT WILL SUBSTANTIALLY BENEFIT FROM THAT. AND IT REALLY DOES SAY, THOUGH, IF THERE'S NO REASONABLE HOPE THAT THE DEFENDANT'S GOING TO REGAIN COMPETENCE, THEY DON'T WANT TO THWART THE FINALITY GOAL OF AEDPA. - IN AN EARLIER DECISION, "PANETTI V. QUARTERMAN" THE SUPREME COURT PROHIBITED THE EXECUTION OF INSANE PRISONERS. HOW DOES THIS CASE RELATE TO THAT? - WELL, THE COURT ACTUALLY HAD A FOOTNOTE SPECIFICALLY ADDRESSING THAT QUESTION, AND SAID THAT THE FACTS OF THIS CASE DON'T IMPLICATE "PANETTI." - OK. OUR OUR NEXT DECISION, "McQUIGGIN V. PERKINS," APPLIES A WELL-KNOWN JUDICIAL DOCTRINE IN A NEW WAY THAT PROVIDES FEDERAL HABEAS PETITIONERS WITH SOME POSSIBLE NEW RELIEF. BUT FIRST, LET'S GET SOME FACTS. FLOYD PERKINS WAS CONVICTED OF MURDERING RODNEY HENDERSON. A THIRD MAN, DAMARR JONES, TESTIFIED THAT PERKINS MURDERED HENDERSON. PERKINS TESTIFIED THAT HE WAS WITH HIS GIRLFRIEND AT THE TIME AND THAT HE SAW JONES AFTER THE MURDER WITH BLOOD ON HIS CLOTHES. PERKINS' CONVICTION BECAME FINAL IN 1997. HE DID NOT FILE A FEDERAL HABEAS PETITION UNTIL 2008-- ELEVEN YEARS LATER. UNDER AEDPA, A FEDERAL HABEAS PETITION IS SUPPOSED TO BE FILED WITHIN ONE YEAR OF THE PETITIONER'S CONVICTION BECOMING FINAL. LAURIE, THAT SEEMS FAIRLY STRAIGHTFORWARD TO ME. BUT WHAT WAS PERKINS' ARGUMENT BEFORE THE COURT? - WELL, WHAT PERKINS CLAIMED IS THAT HE WAS CLAIMING INEFFECTIVE ASSISTANCE OF COUNSEL AND NEWLY DISCOVERED EVIDENCE OF ACTUAL INNOCENCE. AND PERKINS SAID THAT THIS ACTUAL INNOCENCE SHOULD BE ALLOWED TO OVERCOME AEDPA'S ONE-YEAR STATUTE OF LIMITATIONS. - WELL, WHAT WAS THE NEW EVIDENCE? - WELL, THE NEW EVIDENCE, THAT KIND OF WAS PART OF THE PROBLEM FOR HIM. THERE WERE THREE AFFIDAVITS BY PEOPLE WHO SAID THAT JONES HAD BEEN BRAGGING ABOUT COMMITTING THE MURDER. THERE WAS ANOTHER WITNESS WHO SAID THAT THEY THOUGHT THEY SAW JONES IN A BLOODY CAR--CLOTHES, AND THEN THEY ALSO SAID--AT A DRY CLEANER AFFIDAVIT THAT SAID THAT THERE WERE BLOODY CLOTHES BY JONES. BUT THESE AFFIDAVITS CAME FROM 1997 AND 2002. - SO WHY WAS THAT THE PROBLEM? - WELL, BECAUSE IT RULES OUT ANOTHER PATH THAT PERKINS MIGHT HAVE OTHERWISE USED TO GET HIS HABEAS PETITION HEARD. TWO YEARS AGO IN "HOLLAND V. FLORIDA," THE COURT DECIDED THAT A FEDERAL HABEAS PETITIONER COULD INVOKE THE DOCTRINE OF EQUITABLE TOLLING IF HE COULD PROVE, NUMBER ONE, THAT HE HAD BEEN PURSUING HIS RIGHTS DILIGENTLY AND, NUMBER TWO, THAT THERE WAS SOME EXTRAORDINARY CIRCUMSTANCE THAT PREVENTED HIS TIMELY FILING. BUT AS WE'VE BEEN TALKING ABOUT, THE PROBLEM HERE WAS PERKINS HAD THESE AFFIDAVITS FOR YEARS BEFORE HE ACTUALLY SOUGHT FEDERAL POST-CONVICTION RELIEF. SO NO DILIGENCE, NO EQUITABLE TOLLING. - BUT THE COURT DID-- THE MAJORITY DID BELIEVE THAT ACTUAL INNOCENCE COULD PROVIDE AN EXCEPTION TO THE STATUTE OF LIMITATIONS, THAT THEY'VE MADE THIS TYPE OF EXCEPTION FOR A PROCEDURAL DEFAULT IN "SCHLUP V. DELO," AND THAT THERE WAS NOTHING IN THE LANGUAGE OF SECTION 2241(d)(1) THAT PRECLUDED THE USE OF THIS EQUITABLE AUTHORITY TO INVOKE A MISCARRIAGE OF JUSTICE EXCEPTION TO THAT STATUTE OF LIMITATIONS. - LAURIE, HOW HARD IS IT GOING TO BE, OR EASY, TO INVOKE THIS EXCEPTION? AND ARE THERE ANY TIME LIMITS? - IT'S GOING TO BE VERY DIFFICULT. NOT EASY AT ALL. BECAUSE HERE'S THE STANDARD, SUZANNA. THE COURT STATES, IT'S GOING TO REQUIRE A SHOWING THAT, "IN LIGHT OF NEW EVIDENCE NO JUROR ACTING REASONABLY "WOULD HAVE VOTED TO FIND PETITIONER GUILTY BEYOND A REASONABLE DOUBT." AND THEN IN TERMS OF DILIGENCE, EVEN THOUGH IT'S NOT A FIRM REQUIREMENT, IT DOES GO TO THE CREDIBILITY OF THE CLAIM. SO HERE IF YOU HAVE A PETITIONER WHO PEOPLE THINK POTENTIALLY WAITED UNTIL AN ADVERSE WITNESS, MAYBE JONES, HAS DIED, THEN IT'S GOING TO BE LESS LIKELY THAT THEY CAN USE THE ACTUAL INNOCENCE CLAIM. - NONETHELESS, JUSTICE SCALIA'S DISSENT SAID THAT THE MAJORITY'S OPINION WAS A FLAGRANT VIOLATION OF PRINCIPLES OF SEPARATION OF POWERS. - THAT'S RIGHT. JUSTICE SCALIA--AND HE WAS WRITING FOR THREE OTHERS-- HE SAID THAT, OK, HISTORICALLY ACTUAL INNOCENCE WAS AN EQUITABLE, JUDGE-MADE EXCEPTION, BUT NOW WE'RE DEALING WITH A STATUTE WRITTEN BY CONGRESS. - OK. FLOYD PERKINS HAD CLAIMED THAT THE EVIDENCE OF HIS ACTUAL INNOCENCE HAD NOT COME TO LIGHT EARLIER BECAUSE OF INEFFECTIVE ASSISTANCE OF COUNSEL. IN THIS NEXT DECISION, "TREVINO V. THALER," THE PETITIONER CLAIMED THAT TEXAS STATE CRIMINAL PROCEDURE MADE IT VIRTUALLY IMPOSSIBLE TO RAISE AN INEFFECTIVE ASSISTANCE OF COUNSEL OR AN IAC CLAIM AGAINST HIS TRIAL ATTORNEY. BUT THE REAL QUESTION HERE BEFORE THE COURT WAS WHETHER ITS DECISION LAST TERM IN "MARTINEZ V. RYAN" APPLIED TO THE FACTS OF THIS CASE, TOO. LAURIE, WHAT'S THE CONNECTION BETWEEN THESE TWO CASES? - FIRST WE HAVE TO REMEMBER WHAT HAPPENED IN "MARTINEZ," THEN WE SEE HOW IT APPLIES HERE. SO IN "MARTINEZ," THE COURT HELD THAT THE ARIZONA STATE PROCEDURAL RULE THAT REQUIRED A DEFENDANT TO RAISE THE IAC CLAIM ON COLLATERAL ATTACK COULD NOT BE USED AS A PROCEDURAL DEFAULT IF HE DIDN'T HAVE COUNSEL OR EFFECTIVE ASSISTANCE OF COUNSEL. IN TEXAS, WHERE "TREVINO" IS, THEY DON'T HAVE EXACTLY THE SAME SETUP. BUT, PRACTICALLY, THE WAY THE RULES WORK, IT IS THAT A DEFENDANT, A PETITIONER, IS NOT GOING TO BE ABLE TO RAISE THESE INTO COLLATERAL REVIEW. SO THE QUESTION WAS WHETHER "MARTINEZ" WOULD ALSO APPLY TO THE SETUP IN TEXAS FOR "TREVINO." - OK. SO THE QUESTION IS NOW, DOES IT? - AND THE COURT HELD, IT DOES. YOU KNOW, FIVE JUSTICES IN THE MAJORITY SAID THAT, IN FACT, HE WOULD GET THIS BENEFIT, ALTHOUGH I'M NOT SURE IT'S GOING TO DO TREVINO MUCH GOOD. THE COURT DIDN'T ACTUALLY DECIDE WHETHER HE HAD INEFFECTIVE ASSISTANCE OF COUNSEL OR, YOU KNOW, WHAT THEIR COUNSEL ON HABEAS WAS INEFFECTIVE. BUT IT DID SAY THAT "MARTINEZ" APPLIES, AND THAT A PROCEDURAL DEFAULT WILL NOT BAR A FEDERAL HABEAS COURT FROM HEARING A SUBSTANTIAL IAC CLAIM IF AN INITIAL REVIEW ON COLLATERAL ATTACK HAS NO COUNSEL OR INEFFECTIVE ASSISTANCE OF COUNSEL. - OK. NOW WE TURN TO TWO SIXTH AMENDMENT DECISIONS. AS IN OUR LAST DECISION THIS ONE, "CHAIDEZ V. UNITED STATES," ALSO LOOKS BACK TO A PREVIOUS HOLDING BY THE COURT. EVAN, CAN YOU TELL US WHAT THAT WAS? - THAT WAS "PADILLA V. KENTUCKY," WHICH THE COURT HANDED DOWN IN 2010. AND IN THAT CASE, THE COURT HELD THAT THE SIXTH AMENDMENT REQUIRES AN ATTORNEY FOR A CRIMINAL DEFENDANT TO ADVISE THE CLIENT ABOUT THE RISK OF DEPORTATION ARISING FROM A GUILTY PLEA. THE QUESTION IN "CHAIDEZ" WAS WHETHER THE RULING IN "PADILLA" APPLIED RETROACTIVELY, SO THAT A PERSON WHOSE CONVICTION BECAME FINAL BEFORE THE COURT DECIDED "PADILLA" WOULD HAVE THE BENEFIT OF THAT RULING. - OK. WELL, SO THE CURRENT CASE INVOLVES ROSELVA CHAIDEZ, WHO BECAME A LAWFUL PERMANENT RESIDENT IN 1977. SO WHAT ARE THE OTHER FACTS? - ABOUT 20 YEARS LATER, SHE WAS CHARGED WITH CRIMINAL FRAUD. SHE WAS TRIED--SHE WAS FOUND GUILTY AND HER CONVICTION BECAME FINAL IN 2004. UNDER U.S. IMMIGRATION LAW, THE CRIMES CHAIDEZ WAS CONVICTED OF WERE AGGRAVATED FELONIES, WHICH SUBJECTED HER TO MANDATORY DEPORTATION, REMOVAL FROM THE COUNTRY. BUT ACCORDING TO CHAIDEZ, HER ATTORNEY NEVER TOLD HER THAT BEFORE SHE PLED GUILTY. THE PROBLEM FOR CHAIDEZ WAS THAT "PADILLA" WASN'T DECIDED UNTIL 2010. - SO THE QUESTION HERE IS, THEN, WHETHER "PADILLA" ACTUALLY STATED A NEW RULE OF CRIMINAL PROCEDURE OR WAS JUST AN APPLICATION OF AN OLD RULE IN NEW CIRCUMSTANCES. - THAT'S RIGHT. "IN TEAGUE V. LANE," THE COURT DECIDED THAT A CASE ANNOUNCES A NEW RULE WHEN IT BREAKS NEW GROUND OR IMPOSES A NEW OBLIGATION ON THE GOVERNMENT. BUT "TEAGUE" ALSO SAID THAT A DECISION DOES NOT ANNOUNCE A NEW RULE WHEN IT'S MERELY THE APPLICATION OF A PREEXISTING GENERAL PRINCIPLE TO A DIFFERENT SET OF FACTS. WHEN A COURT ANNOUNCES A NEW RULE, A PERSON WHOSE CONVICTION WAS ALREADY FINAL DOESN'T BENEFIT FROM THAT NEW RULE IN MAKING A HABEAS OR SIMILAR CLAIM. - SO THE QUESTION THE COURT HAD TO DECIDE HERE WAS WHETHER "PADILLA" ANNOUNCED A NEW RULE UNDER THE STANDARDS OF "TEAGUE" OR WHETHER IT WAS JUST AN APPLICATION OF "STRICKLAND V. WASHINGTON." - YEAH. AND "STRICKLAND" HELD THAT A LEGAL REPRESENTATION VIOLATES THE SIXTH AMENDMENT RIGHT TO COUNSEL IF IT FALLS BELOW AN OBJECTIVE STANDARD OF REASONABLENESS AS INDICATED BY PREVAILING PROFESSIONAL NORMS, AND ADDITIONALLY, THE DEFENDANT SUFFERED PREJUDICE AS A RESULT. BUT THE MAJORITY HERE IN "CHAIDEZ" SAID THAT "PADILLA" DID A LOT MORE THAN JUST APPLY "STRICKLAND" TO A NEW SET OF FACTS. BEFORE "PADILLA," THE FEDERAL COURTS HAD OVERWHELMINGLY AGREED THAT "STRICKLAND" DIDN'T APPLY TO COLLATERAL CONSEQUENCES LIKE DEPORTATION. IT ONLY APPLIED TO THE DIRECT CONSEQUENCES OF CRIMINAL PROSECUTION. THE COURT HERE SAID THE REASON "PADILLA" CONSTITUTED A NEW RULE WAS THAT THE COURT HAD TO FIRST DECIDE WHETHER "STRICKLAND" EVEN APPLIED TO COLLATERAL CONSEQUENCES LIKE DEPORTATION. AT THE MOMENT IT DECIDED THAT QUESTION-- IT DECIDED THAT IT DID APPLY-- THAT'S WHEN IT BROKE NEW GROUND. - UNDER "TEAGUE V. LANE," THERE ARE LIMITED CIRCUMSTANCES WHERE A NEW RULE WILL APPLY RETROACTIVELY. WHY NOT HERE? - WELL, IT'S TRUE THAT THERE IS AN EXCEPTION FOR SO-CALLED WATERSHED RULES, IF THE NEW RULE IMPLICATES FUNDAMENTAL FAIRNESS IN THE ACCURACY OF THE CRIMINAL PROCEEDING. BUT HERE "CHAIDEZ" DIDN'T MAKE THAT ARGUMENT. SHE ARGUED THAT ALL "PADILLA" DID WAS TO APPLY THE HOLDING IN "STRICKLAND" TO A NEW SET OF FACTS AND THAT ALL THE COURT IN HER CASE HAD TO DO WAS CITE THAT DECISION AND THEY COULD FIND IN HER FAVOR. - OK. THANK YOU. WE'RE ABOUT TO TALK ABOUT OUR FINAL DECISION OF THIS PANEL, AND WE'LL ADDRESS YOUR QUESTIONS AFTERWARDS. THE FINAL DECISION IS "JOHNSON V. WILLIAMS." THE FEDERAL ANTI-TERRORISM AND EFFECTIVE DEATH PENALTY ACT, OR AEDPA, PROHIBITS A FEDERAL HABEAS COURT FROM GRANTING RELIEF TO A STATE PRISONER WHOSE CLAIM HAS ALREADY BEEN ADJUDICATED ON THE MERITS IN STATE COURT. THERE ARE TWO EXCEPTIONS TO THIS PROHIBITION. THE HABEAS COURT MAY GRANT RELIEF IF THE STATE COURT'S DECISION WAS CONTRARY TO OR INVOLVED AN UNREASONABLE APPLICATION OF CLEARLY ESTABLISHED FEDERAL LAW AS ESTABLISHED BY THE U.S. SUPREME COURT. OR THE ADJUDICATION RESULTED IN A DECISION THAT WAS BASED ON AN UNREASONABLE DETERMINATION OF THE FACTS IN LIGHT OF THE EVIDENCE PRESENTED IN THE STATE COURT. BUT THIS CASE ACTUALLY FOCUSED ON A MORE ELEMENTARY QUESTION. LAURIE, TELL US ABOUT THAT. - YEAH, BETH, THE MORE ELEMENTARY QUESTION REALLY WAS WHETHER TARA WILLIAMS' FEDERAL CONSTITUTIONAL ISSUE WAS EVER DECIDED ON THE MERITS BY THE STATE COURT. WHAT HAPPENED IS SHE WAS CONVICTED IN CALIFORNIA OF MURDER. ON APPEAL, SHE RAISED THE ISSUE THAT THE DISMISSAL OF A JUROR BOTH VIOLATED CALIFORNIA LAW AND ALSO THE SIXTH AMENDMENT. WHEN THE CALIFORNIA COURT OF APPEALS ISSUED ITS DECISION, IT CITED TO THE SUPREME COURT, BUT IT'S NOT CLEAR WHETHER IT WAS RELYING ON THE FEDERAL CONSTITUTIONAL LAW OR THE CALIFORNIA LAW. - SO WHAT DID THEY SAY? - WELL, WHAT THE COURT SAID IS THAT ITS ANSWER WOULD FOLLOW LOGICALLY FROM A RECENT DECISION BY THE SUPREME COURT IN "HARRINGTON V. RICHTER." IN THAT CASE, THEY SAID IF A STATE COURT SUMMARILY REJECTS ALL THE CLAIMS, THEN THERE'S A REBUTTABLE PRESUMPTION THAT THAT INCLUDES THE FEDERAL CLAIM AS WELL, THAT THAT WAS ADJUDICATED. SO LIKEWISE IN THIS CASE, THERE WAS A REBUTTABLE PRESUMPTION THAT, IN FACT, THEY HAD ADJUDICATED AND DECIDED ON THE MERITS THE CONSTITUTIONAL ISSUE. - SO, EVAN, DID THE COURT STATE ANY REASONS WHY THEY THOUGHT A STATE COURT MIGHT NOT DIRECTLY OR EXPLICITLY ADDRESS THE FEDERAL CONSTITUTIONAL CLAIMS OF A DEFENDANT? - YES. THE COURT CITED THREE SITUATIONS WHERE A STATE COURT MIGHT NOT DO THAT. ONE IS WHERE A STATE LAW FULLY INCORPORATES FEDERAL LAW. A SECOND IS WHERE THE DEFENDANT ONLY FLEETINGLY MENTIONS FEDERAL LAW AND DOESN'T SEEM TO BE MAKING AN INDEPENDENT FEDERAL LAW CLAIM, AND, THIRD, WHERE THE FEDERAL CLAIM IS PATENTLY FRIVOLOUS. - LAURIE, YOU MENTIONED A REBUTTABLE PRESUMPTION. SO WHAT WERE THE GROUNDS FOR REBUTTING THAT ASSUMPTION? - THE COURT DOESN'T ACTUALLY GIVE AN EXCLUSIVE LIST, BUT IT DOES SUGGEST THAT YOU CAN LOOK AT THE STATE COURT ORDER TO SEE IF, IN FACT, THEY DIDN'T RELY ON THE FEDERAL CLAIM, OR EVEN AN INTERPRETATION OF THE RULES OF HOW THAT STATE COURT MAKES THEIR DECISIONS. - ALL RIGHT. THANK YOU. WE NOW HAVE SOME TIME FOR A FEW QUESTIONS. ARE THERE ANY EMAILS, JIM? - YES. WE HAVE AN EMAIL QUESTION ON THIS ONE. IT SAYS, "FOR SEVERAL TERMS, THE COURT HAS BEEN "CABINING PRISONERS' ABILITY TO FILE FEDERAL HABEAS CLAIMS "UNDER AEDPA. NOW IT HAS CREATED AN ACTUAL INNOCENCE EXCEPTION "TO AEDPA'S STATUTE OF LIMITATIONS IN 'McQUIGGIN' "AND MADE IT EASIER FOR A PRISONER--TO CLAIM "INEFFECTIVE ASSISTANCE OF COUNSEL "IN A COLLATERAL PROCEEDING. "ARE WE LOOKING AT A NEW DIRECTION IN THE COURT'S AEDPA JURISPRUDENCE?" WHAT DO YOU THINK? - I THINK IT'S PROBABLY NOT SAFE ON THE BASIS OF THAT EVIDENCE--YOU KNOW, WHAT WE'VE SEEN IN THE LAST COUPLE OF TERMS-- TO LOOK AT THAT. I MEAN, THE ACTUAL INNOCENCE EXCEPTION HAS EXISTED FOR A LONG TIME, GOING ALL THE WAY BACK TO "MURRAY V. CARRIER" IN THE 1980s. AND THE COMPASS OF THE DECISIONS FROM THE LAST COUPLE OF TERMS, I WOULD SAY, IS A LOT MORE LIMITED. AND SO I WOULD SAY WE'D NEED TO SEE MORE BEFORE WE CAN DRAW THAT CONCLUSION. - I THINK IT'S IMPORTANT THAT IN "McQUIGGIN," THE COURT WAS NOT CREATING A NEW STANDARD FOR ACTUAL INNOCENCE. THEY WERE TAKING THE STANDARD FROM "SCHLUP V. DELO" AND "HOUSE V. BELL" AND APPLYING IT TO THIS SPECIFIC SITUATION. - GREAT. THANK YOU. - NEXT WE'LL HAVE SOME DECISIONS AFFECTING CRIMINAL LAW. - MS. MAGUIRE, COULD I TAKE YOU TO A DIFFERENT KIND OF QUESTION? - CERTAINLY. - LET'S ASSUME THAT THERE WERE A STATUTE, AND IT SAID CARRYING A GUN IS AN OFFENSE AND THAT THE RANGE IS 5 TO 10 YEARS. I REALIZE IT GOES UP FURTHER IN THE REAL WORLD, BUT LET'S JUST SAY 5 TO 10 YEARS. AND CONGRESS SAID, IN SETTING THE PENALTY WITHIN THAT RANGE, THE JUDGE SHALL CONSIDER WHETHER THE DEFENDANT BRANDISHED THE GUN AND WHETHER THE DEFENDANT DISCHARGED THE GUN. NOW--AND THAT'S ALL THE STATUTE SAID. THAT WOULD BE CONSTITUTIONAL; IS THAT NOT RIGHT? - YES, JUSTICE KAGAN, THAT WOULD BE CONSTITUTIONAL BECAUSE IT DOESN'T HAVE THE MANDATORY EFFECT. - OK. SO IT'S CONSTITUTIONAL FOR THE JUDGE TO SAY, SEVEN YEARS BECAUSE YOU BRANDISHED, NINE YEARS BECAUSE YOU DISCHARGED. SO WHAT MAKES IT UNCONSTITUTIONAL, WHAT MAKES IT A VIOLATION OF THE SIXTH AMENDMENT, WHEN, NOW, CONGRESS JUST PROVIDES SOMETHING EXTRA IN THE STATUTE? IT SAYS NOT JUST YOU SHALL CONSIDER BRANDISHING AND DISCHARGING, BUT, IF YOU FIND BRANDISHING, YOU GET 7; IF YOU FIND DISCHARGING, YOU GET 9. - OK. WHAT MAKES THAT UNCONSTITUTIONAL IS BECAUSE YOU ARE STRIPPING THE JUDGE OF ALL AUTHORITY, AND, BY OPERATION OF LAW, YOU ARE TELLING THAT JUDGE THAT YOU MUST IMPOSE THIS SENTENCE. - WELL, THAT SEEMS RIGHT AS A DEFINITIONAL MATTER, AS A DESCRIPTIVE MATTER. BUT I GUESS THE QUESTION I'M HAVING DIFFICULTY WITH IS WHY DOES THAT MATTER FOR PURPOSES OF THE SIXTH AMENDMENT? THE JURY IS DOING THE EXACT SAME THING, WHICH IS THE JURY ISN'T DOING ANYTHING IN EITHER OF MY EXAMPLES. SO THE ONLY DIFFERENCE BETWEEN EXAMPLE NUMBER ONE, WHICH YOU SAID WAS CONSTITUTIONAL, AND EXAMPLE NUMBER TWO IS THAT, NOW, CONGRESS IS GIVING FURTHER INSTRUCTION TO THE JUDGE, BUT NOTHING MORE IS BEING TAKEN AWAY FROM THE JURY; IS IT? - A NUMBER OF THE CRIMINAL LAW CASES DECIDED BY THE COURT THIS TERM ADDRESS JUDICIAL DISCRETION IN SENTENCING. IN OUR FIRST DECISION, THE COURT RESTRICTED THAT DISCRETION SOMEWHAT BY OVERRULING A FAIRLY RECENT DECISION OF ITS OWN. THE CASE FROM THIS TERM WAS "ALLEYNE V. UNITED STATES." ALLEN ALLEYNE AND AN ACCOMPLICE ROBBED A STORE MANAGER WITH A GUN. UNDER THE FEDERAL LAW, THE MINIMUM SENTENCE FOR THIS CRIME DIFFERED DEPENDING ON HOW THE GUN WAS USED. IF HE JUST POSSESSED IT DURING THE CRIME, THE MINIMUM SENTENCE WAS FIVE YEARS. IF HE BRANDISHED THE GUN, IT WAS SEVEN YEARS. AND IF THE GUN WAS DISCHARGED, THE MANDATORY MINIMUM WAS TEN YEARS. WELL, THE JURY DID NOT FIND THAT ALLEYNE BRANDISHED THE GUN BUT THE JUDGE DID AND SENTENCED HIM TO SEVEN YEARS. HE SAID IT WAS A SENTENCING FACTOR AND DIDN'T HAVE TO BE PROVED BY THE JURY BEYOND A REASONABLE DOUBT. IN MAKING THIS RULING, THE JUDGE RELIED ON THE SUPREME COURT'S 2002 DECISION IN "HARRIS V. UNITED STATES." IN THAT CASE, THE COURT EXPLICITLY HELD THAT THE FACTS THAT TRIGGER AN APPLICATION OF A MANDATORY MINIMUM SENTENCE ARE SENTENCING FACTORS FOR THE JUDGE. AND THAT SOUNDED PRETTY STRAIGHTFORWARD, ERWIN. - IT WAS STRAIGHTFORWARD UNDER "HARRIS," BUT THE SUPREME COURT OVERRULED "HARRIS V. UNITED STATES" IN THIS CASE. IN "APPRENDI V. NEW JERSEY" IN 2000, THE SUPREME COURT SAID ANY FACTOR OTHER THAN A PRIOR CONVICTION THAT LEAVES THE SENTENCE GREATER THAN THE STATUTORY MAXIMUM MUST BE PROVEN TO THE JURY BEYOND A REASONABLE DOUBT. IN "HARRIS," THE COURT DREW A DISTINCTION BETWEEN FACTS THAT LEAD TO SENTENCES GREATER THAN THE STATUTORY MAXIMUM AND FACTS THAT TRIGGER MANDATORY MINIMUM SENTENCES. THE COURT SAID "APPRENDI" DOESN'T APPLY TO THE LATTER. - SO WHY DID IT OVERRULE THE "HARRIS" DECISION? - THE SUPREME COURT HELD 5-4 THAT THERE WAS NOT A MEANINGFUL DISTINCTION BETWEEN THE PRINCIPLES OF "APPRENDI" AND MANDATORY MINIMUM SENTENCES. THE COURT SAID FACTS THAT TRIGGER MANDATORY MINIMUM SENTENCES, LIKE WHETHER THERE WAS BRANDISHING, SHOULD HAVE TO BE PROVEN TO THE JURY BEYOND A REASONABLE DOUBT. - ERWIN, DON'T YOU THINK JUSTICE BREYER REALLY IS THE KEY TO THIS DECISION? HE HAD BEEN IN THE MAJORITY IN THE "HARRIS" CASE. AND NOW IN THIS CASE, HE'S VOTING TO OVERRULE IT. AND MAYBE THAT'S BECAUSE, AS HE SAID, HE DIDN'T AGREE WITH "APPRENDI" WHEN IT WAS FIRST DECIDED. BUT NOW THAT IT'S BEEN AROUND FOR 10 YEARS, HE DOESN'T THINK "HARRIS" MAKES ANY SENSE. - I THINK THAT'S ABSOLUTELY RIGHT. I THINK THE BOTTOM LINE IS THAT FOR ALL OF THE FEDERAL LAWS WITH MANDATORY MINIMUMS, THE FACTS THAT TRIGGER THEM WILL HAVE TO BE PROVEN TO THE JURY BEYOND A REASONABLE DOUBT. NOW, THIS DOESN'T MEAN THAT EVERY FACT THAT INCREASES A SENTENCE HAS TO BE PROVEN TO THE JURY BEYOND A REASONABLE DOUBT. THE COURT WAS CLEAR IN SAYING THAT AS TO SENTENCES WITHIN THE STATUTORY RANGE, THE FACTS THAT MIGHT INCREASE THE SENTENCE ARE STILL SENTENCING FACTORS THAT THE JUDGE CAN FIND BY A PREPONDERANCE OF THE EVIDENCE. - THE SENTENCES OF ARMED CRIMINALS CAN ALSO BE INCREASED UNDER FEDERAL LAW IF THE DEFENDANT HAS THREE PRIOR CONVICTIONS FOR A VIOLENT FELONY, INCLUDING BURGLARY, ARSON, OR EXTORTION. TO DETERMINE IF A PAST CONVICTION IS FOR ONE OF THOSE CRIMES, COURTS USE WHAT'S CALLED A CATEGORICAL APPROACH. THAT MEANS THEY COMPARE THE ELEMENTS OF THE STATUTE THE DEFENDANT WAS CONVICTED UNDER WITH THE ELEMENTS OF THE GENERIC OFFENSE. IN OTHER WORDS, THE OFFENSE AS COMMONLY UNDERSTOOD. YOU KNOW, THE GENERIC OFFENSE. IF THE STATUTE'S ELEMENTS ARE THE SAME AS, OR NARROWER THAN, THOSE OF THE GENERIC OFFENSE, THEN THE PRIOR CONVICTION QUALIFIES AS A PREDICATE CRIME UNDER THE ARMED CAREER CRIMINALS ACT, OR ACCA. AND IT INCREASES THE SENTENCE FOR THE CURRENT CONVICTION. BUT THE COURT'S DECISION IN "DESCAMPS V. UNITED STATES" ALSO FOCUSED ON A RELATED APPROACH, DIDN'T IT, LAURIE? - IT DID. AND THAT APPROACH IS CALLED THE MODIFIED CATEGORICAL APPROACH. AND THIS COMES INTO PLAY WHEN YOU HAVE A STATE STATUTE, WHICH THE DEFENDANT HAD BEEN PREVIOUSLY CONVICTED OF, THAT SETS OUT ONE OR MORE ELEMENTS IN THE ALTERNATIVE. SO THINK ABOUT BURGLARY. IT COULD BURGLARY BY THE UNLAWFUL ENTRY INTO A BUILDING OR INTO AN AUTOMOBILE. AND IN THAT SITUATION, IT WOULD BE DIFFICULT TO KNOW IF THE ELEMENTS OF THE PRIOR CONVICTION MEET THE ELEMENTS OF THE GENERIC OFFENSE. SO THE COURT HAS SAID THAT AT THAT POINT, THE SENTENCING COURT CAN LOOK AT A LIMITED CATEGORY OF DOCUMENTS--THE INDICTMENT, THE JURY INSTRUCTION-- TO COME UP WITH THAT DETERMINATION. - AND HOW DID THE ISSUE COME UP IN THE "DESCAMPS" CASE? - WELL, IN THE "DESCAMPS" CASE, YOU HAD A CALIFORNIA BURGLARY LAW. BUT THAT IS DIFFERENT. IT DID NOT INCLUDE THE COMMON LAW ELEMENT OF BREAKING AND ENTERING. SO THE QUESTION WAS WHETHER THIS PRIOR CONVICTION ACTUALLY QUALIFIED AS A PREDICATE CRIME UNDER ACCA. THIS STATUTE DID NOT DEFINE BURGLARY IN DIFFERENT WAYS, AND YET THE COURT WANTED TO USE, AND DID USE, THE MODIFIED CATEGORICAL APPROACH. AND IT WENT ABOUT EXAMINING SOME DOCUMENTS TO SEE IF THE CONVICTION WOULD QUALIFY, INCLUDING THE PLEA COLLOQUY. IT ENDED UP SENTENCING DESCAMPS TO A TERM MORE THAN TWICE AS LONG AS HE WOULD HAVE RECEIVED. - EVAN, DID THE COURT OF APPEALS AFFIRM THAT SENTENCE? - YES. IT DID, BASED ON ITS RECENT EN BANC DECISION IN "V. AGUILA-MONTES DE OCA." IN THAT CASE, THE NINTH CIRCUIT HAD RULED THAT WHEN A SENTENCING COURT CONSIDERS A CONVICTION UNDER A STATUTE THAT'S CATEGORICALLY BROADER THAN THE GENERIC OFFENSE, THAT IT MAY SCRUTINIZE CERTAIN DOCUMENTS TO DETERMINE THE FACTUAL BASIS OF THE CONVICTION. - AND DID THE SUPREME COURT AFFIRM THE NINTH CIRCUIT? - NO. THE COURT HELD THAT THE MODIFIED CATEGORICAL APPROACH IS ONLY APPROPRIATE IN CASES LIKE THE ONES WHERE LAURIE WAS TALKING ABOUT, WHEN A DEFENDANT WAS CONVICTED UNDER A STATUTE THAT ALLOWS ALTERNATIVE WAYS TO COMMIT A CHARGED OFFENSE, A SO-CALLED DIVISIBLE OFFENSE. IT'S NOT APPROPRIATE FOR SO-CALLED INDIVISIBLE STATUTES WHERE YOU HAVE A SINGLE CRIME WITH A SINGLE SET OF ELEMENTS. - AND I THINK THE COURT REACHED THAT DECISION FOR SEVERAL REASONS. YOU KNOW, FIRST, I DON'T THINK THEY WANT LOWER COURTS SPENDING A LOT OF TIME LOOKING THROUGH OLD DOCUMENTS TO SEE IF THE PRIOR CRIMES QUALIFY. SECOND, I THINK THE COURT WAS CONCERNED. WE HAVE BEEN TALKING ABOUT "APPRENDI," WHETHER THIS DOES RAISE SERIOUS CONCERNS ABOUT "APPRENDI." BECAUSE YOU HAD THE COURT MAKING FINDINGS ON DISPUTED FACTS. AND, FINALLY, THAT APPROACH, THE MODIFIED APPROACH, WOULD DENY SOME DEFENDANTS OF THE BENEFITS OF SOME NEGOTIATED PLEAS BECAUSE NOW THE JUDGES WOULD BE LOOKING BEHIND THE PLEAS TO SEE THE FACTS. - THANKS. UNTIL THE COURT DECIDED THIS NEXT CASE, DEFENDANTS IN SOME CIRCUITS COULD BE SENTENCED TO LONGER TERMS THAN THEY MIGHT HAVE GOTTEN WHEN THEY COMMITTED THE CRIME, BECAUSE FEDERAL SENTENCING GUIDELINES HAD BEEN AMENDED TO IMPOSE A GREATER PUNISHMENT. BUT IN "PEUGH V. UNITED STATES," THE SUPREME COURT RULED THAT THAT WAS NO LONGER ALLOWED. WHAT WAS THE COURT'S REASONING THERE, LAURIE? - IN A 5 TO 4 DECISION, WHAT THE COURT SAID IS THAT THESE HIGHER SENTENCING GUIDELINES ARE SUBJECT TO THE EX POST FACTO CLAUSE, BECAUSE EVEN THOUGH THEY ARE NOT STATUTES, THEY WORK MUCH THE SAME WAY GIVEN THE SENTENCING SCHEME PRESENTLY GOING IN THE FEDERAL COURTS. THE JUDGES ARE DIRECTED TO START WITH THE SENTENCING GUIDELINES. THAT'S WHAT THEY LOOK AT. WE KNOW FROM STATISTICS THAT MANY OF THEM ARE RELYING ON IT. SO THE COURT SAYS IN THIS SITUATION, IF THOSE GUIDELINES CHANGE, IF THEY GO UP, THE DEFENDANT SHOULD BE SUBJECT TO THE GUIDELINES THAT WERE IN EFFECT AT THE TIME OF THE CRIME. - A SIMILAR CHOICE WAS AT THE HEART OF OUR NEXT DECISION. THAT'S "HENDERSON V. UNITED STATES." HERE THE QUESTION WAS WHETHER TO APPLY THE LAW AT THE TIME OF TRIAL OR THE LAW AT THE TIME OF APPEAL. IN EARLY 2010, HENDERSON PLEADED GUILTY TO BEING A FELON IN POSSESSION OF A FIREARM. IN JUNE OF THAT YEAR, A COURT SENTENCED HENDERSON TO AN ABOVE GUIDELINES PRISON TERM OF 60 MONTHS. THE JUDGE GAVE THE LONGER SENTENCE SO THAT HENDERSON WOULD QUALIFY FOR AN IN-PRISON DRUG REHAB PROGRAM. AND HENDERSON DIDN'T OBJECT TO THE HARSHER SENTENCE. IN 2011, AFTER HENDERSON WAS SENTENCED BUT BEFORE HIS APPEAL WAS HEARD, THE SUPREME COURT DECIDED "TAPIA V. UNITED STATES," IN WHICH IT HELD THAT IT'S ERROR FOR A COURT TO IMPOSE OR LENGTHEN A SENTENCE THAT WOULD ENABLE A PRISONER OR AN OFFENDER TO COMPLETE A TREATMENT PROGRAM OR OTHERWISE PROMOTE REHABILITATION. SO UNDER "TAPIA," HENDERSON'S SENTENCE WAS UNLAWFUL, AND THE DISTRICT COURT'S DECISION WAS ERRONEOUS. SO, ERWIN, WHAT WAS MR. HENDERSON'S RECOURSE? - THE USUAL RULE IS THAT A CRIMINAL DEFENDANT CAN RAISE ON APPEAL ONLY THOSE ISSUES THAT WERE RAISED IN THE TRIAL COURT. BUT FEDERAL RULE OF CRIMINAL PROCEDURE 52(b) CREATES AN EXCEPTION FOR PLAIN ERROR. UNDER WELL-ESTABLISHED PRINCIPLES, THIS HAS SEVERAL REQUIREMENTS. IT MUST BE PLAIN; IT MUST BE AN ERROR; IT MUST AFFECT SUBSTANTIAL RIGHTS; AND IT HAS TO GO TO FUNDAMENTAL FAIRNESS OR THE INTEGRITY OF THE PROCEEDING; OR AFFECT THE PUBLIC REPUTATION OF THE JUDICIARY. - BUT THE DECISION WASN'T EVEN AN ERROR WHEN THE JUDGE IMPOSED IT ON HENDERSON BECAUSE "TAPIA" HADN'T BEEN DECIDED YET. - THE SUPREME COURT RULED 6 TO 3 THAT PLAIN ERROR SHOULD BE DECIDED AT THE TIME OF THE APPEAL. THE SUPREME COURT SAID IT WAS BALANCING COMPETING CONSIDERATIONS. ON THE ONE HAND, THERE IS THE DESIRE TO MAKE SURE THAT CRIMINAL DEFENDANTS RAISE ALL ISSUES IN THE TRIAL COURT. BUT THERE'S ALSO THE DESIRE TO MAKE SURE THAT THE COURT OF APPEALS APPLIES THE CORRECT LAW AT THE TIME OF ITS DECISION. AND THE SUPREME COURT CHOSE THE LATTER, SAYING THERE IS A LONGSTANDING PRINCIPLE THAT COURTS OF APPEALS MUST APPLY THE CORRECT LAW AT THE TIME OF THE DECISION. - THIS NEXT DECISION SURPRISED ME, AND I'M INTERESTED TO HEAR YOUR THOUGHTS. YOU MIGHT SAY THAT THE QUESTION IN THIS NEXT CASE IS WHEN SILENCE IS GOLDEN AND WHEN IT'S NOT. GENEVEVO SALINAS VOLUNTARILY WENT TO THE LOCAL POLICE STATION TO ANSWER SOME QUESTIONS ABOUT A PAIR OF MURDERS. HE TALKED TO THE POLICE FOR SOME TIME ABOUT THE VICTIMS AND THE MURDERS AND THE CRIME. BUT WHEN AN OFFICER ASKED MR. SALINAS WHETHER THE SHELLS FOUND AT THE MURDER SCENE WOULD MATCH THOSE FROM A GUN HIS FATHER HAD GIVEN THE POLICE, SALINAS FELL SILENT. AND AT HIS TRIAL FOR THE MURDERS, THE PROSECUTORS USED THAT SILENCE AS EVIDENCE OF GUILT. NOW, SALINAS WAS CONVICTED AND SENTENCED TO TWENTY YEARS. THE CASE IS "SALINAS V. TEXAS." I THOUGHT THAT THE COURT HAD RULED THAT PROSECUTORS AREN'T ALLOWED TO USE A DEFENDANT'S SILENCE DURING A CUSTODIAL INTERROGATION AS PROOF OF GUILT AT THE TRIAL. - BUT, JIM, SALINAS WAS NOT SUBJECT TO CUSTODIAL INTERROGATION. EVEN HE CONCEDED THAT HE FELT FREE TO LEAVE. AND BECAUSE HE WASN'T IN CUSTODIAL INTERROGATION, HE WAS NOT GIVEN HIS MIRANDA RIGHTS. SO, REALLY, THE QUESTION IS, CAN A DEFENDANT INVOKE HIS FIFTH-AMENDMENT RIGHT TO REMAIN SILENT BY BEING SILENT? OR DOES HE HAVE TO DO SOMETHING OPENLY TO INVOKE THAT RIGHT? - OK. AND WHERE DID THE COURT COME DOWN ON THAT? - WELL, THERE WAS NO MAJORITY DECISION IN THIS CASE. BUT JUSTICE ALITO, WRITING FOR THE PLURALITY, SAID THAT HIS CLAIM OF THE PRIVILEGE ACTUALLY FAILED, THAT THERE ARE ONLY TWO SITUATIONS WHERE YOU CAN INVOKE YOUR FIFTH-AMENDMENT PRIVILEGE OR SAY THERE'S BEEN A VIOLATION WITHOUT DOING SOMETHING POSITIVE. THE FIRST MIGHT BE THAT, IN FACT, WHEN YOU ARE ON TRIAL AND YOU HAVE THE RIGHT TO REMAIN SILENT AND THE PROSECUTOR CANNOT COMMENT ON THAT RIGHT. AND THE OTHER EXCEPTION WOULD BE IF THE GOVERNMENT DOES SOMETHING TO COERCE THE FORFEITURE OF THE PRIVILEGE INVOLUNTARILY. OTHERWISE, THE COURT FOUND THAT SALINAS' SILENCE DIDN'T FALL WITHIN THOSE EXCEPTIONS. - OK, ERWIN, WHAT WAS SALINAS' ARGUMENT? - SALINAS ARGUED THAT HE HAD INVOKED HIS RIGHT TO REMAIN SILENT IN THE MOST BASIC WAY-- HE WAS SILENT. ALSO, HE ARGUED, AS LAURIE SAID, THAT HE HAD NOT YET BEEN GIVEN MIRANDA WARNINGS SINCE HE WASN'T IN CUSTODY, SO HE HADN'T BEEN INFORMED OF HIS RIGHT TO REMAIN SILENT. EVEN THOUGH THERE WAS NO MAJORITY OPINION IN THIS CASE, I THINK THE BOTTOM LINE PRINCIPLE THAT EMERGES IS THAT PROSECUTORS CAN DRAW AN ADVERSE INFERENCE FROM A CRIMINAL DEFENDANT'S SILENCE IN RESPONSE TO POLICE QUESTIONS THAT OCCUR BEFORE ARREST. - FINALLY WE WANT TO TELL YOU ABOUT THE DECISION IN ONE LAST CASE, "MONCRIEFFE V. HOLDER." THIS WAS A DECISION WRITTEN BY JUSTICE SOTOMAYOR. THE IMMIGRATION AND NATIONALITY ACT, OR INA, SAYS THAT A NON-CITIZEN WHO HAS BEEN CONVICTED OF AN AGGRAVATED FELONY MAY BE DEPORTED FROM THIS COUNTRY. IT ALSO PROHIBITS THE ATTORNEY GENERAL FROM GRANTING DISCRETIONARY RELIEF FROM REMOVAL TO AN AGGRAVATED FELON. AMONG THE CRIMES THAT ARE CLASSIFIED AS AGGRAVATED FELONIES ARE ILLICIT DRUG TRAFFICKING OFFENSES. IN "MONCRIEFFE" IN ORDER TO SETTLE A DISPUTE BETWEEN TWO OF THE CIRCUITS, THE COURT DECIDED THAT THIS CATEGORY DOES NOT INCLUDE A STATE CRIMINAL STATUTE THAT EXTENDS TO THE SOCIAL SHARING OF A SMALL AMOUNT OF MARIJUANA. SO NOW LET'S TURN TO SOME QUESTIONS. BETH? - OK. WE HAVE SEVERAL QUESTIONS FROM THE WESTERN DISTRICT OF OKLAHOMA. LET'S TAKE THE FIRST ONE. IT HAS TO DO WITH "DESCAMPS." AND THE QUESTION IS, IS WHETHER YOU AGREE WITH JUSTICE ALITO THAT THE COURT'S DECISION IN "DESCAMPS" IS GOING TO SERIOUSLY REDUCE THE CONSISTENT APPLICATION OF THE ACCA, DEPENDING ON THE STATE'S STATUTES THE DEFENDANTS ARE CONVICTED UNDER. - I WOULD SAY THAT'S HARD TO PROJECT IN ADVANCE. I THINK IT REMAINS TO BE SEEN HOW THIS DIVISIBLE VERSUS INDIVISIBLE DISTINCTION IS GOING TO BE PLAYED OUT IN THE LOWER COURTS. THE MAJORITY IN THIS CASE MADE IT LOOK PRETTY SIMPLE, MADE IT LOOK LIKE A FAIRLY FORMALISTIC APPROACH, BUT I THINK JUSTICE ALITO KIND OF DECONSTRUCTED THAT, AS THE ACADEMICS SAY, TO SOME EXTENT IN THE DISSENT. AND I THINK IT'S GOING TO BE AN OPEN QUESTION AS TO HOW LOWER COURTS ARE GOING TO GRAPPLE WITH THAT. - IT ALSO MAY AFFECT HOW STATE COURTS ACTUALLY LOOK AT THEIR STATUTES AND WHETHER THEY GO BACK AND REDRAFT THOSE STATUTES SO IT'S CLEAR WHETHER THEY WOULD QUALIFY. - WELL, LET'S GO TO THE NEXT QUESTION... AND THAT IS TALKING ABOUT THE "SALINAS" DECISION. "WHAT DO YOU THINK THE EFFECT OF THE 'SALINAS' DECISION "WILL BE ON THE ADMISSIBILITY OF DEFENDANTS' STATEMENTS IN CRIMINAL CASES?" - I THINK YOU'LL SEE MANY MORE STATEMENTS, OR I SHOULD SAY SILENCE COMING IN. WHAT YOU'RE GOING TO HAVE ARE PROSECUTORS ARGUING THAT THE DEFENDANT BEFORE THEY'RE IN CUSTODIAL INTERROGATION WAS REMAINING SILENT WHEN CONFRONTED WITH SOME DAMAGING FACTS, AND THAT, IN FACT, SHOWS CONSCIOUSNESS OF GUILT OR GUILT ITSELF. - IN "BERGHUIS V. TOMPKINS" A COUPLE OF YEARS AGO, THE SUPREME COURT SAID, IN ORDER FOR A DEFENDANT TO INVOKE THEIR RIGHT TO BE SILENT, THE DEFENDANT HAS TO EXPRESSLY SAY THAT'S WHAT HE OR SHE IS DOING. AND THAT'S WHAT I THINK "SALINAS" IS SAYING, EVEN PRE-ARREST. WHEN IT COMES TO SILENCE, ONE CAN INVOKE THE RIGHT ONLY BY EXPLICITLY DOING SO. - OK. I THINK WE HAVE TIME FOR THE LAST QUESTION THAT'S COME IN. AND THAT'S ONE ABOUT THE SENTENCING GUIDELINES. AND IT'S ONE I ACTUALLY HAVE MYSELF. EVER SINCE THE COURT MADE THE SENTENCING GUIDELINES ADVISORY IN "BOOKER I," IT'S BEEN GIVING JUDGES MORE AND MORE DISCRETION IN THIS AREA. SO DO YOU THINK THE DECISION IN "PEUGH" MEANS THAT THE COURT IS GOING TO CONTINUE IN THE SAME DIRECTION? - WELL, I THINK THAT BASICALLY "PEUGH" SAYS THAT WE HAVE THIS NEW SYSTEM OF SENTENCING, WHERE THE SENTENCING GUIDELINES--AS YOU SAID, THEY'RE NOT MANDATORY. BUT IT'S REALLY WHAT THE JUDGES ARE FOLLOWING. AND THAT'S WHAT THEY'RE DIRECTED TO FOLLOW. IT GIVES THE JUDGES BROADER DISCRETION, BUT IT'S HARD TO SAY WHETHER ALL THOSE JUDGES WANT TO JUMP INTO THAT BROAD AREA OF DISCRETION. THEY STILL LOOK VERY MUCH, AT LEAST AT THE BEGINNING OF THE PROCESS, TO THE GUIDELINES. - OK. THAT'S ALL THE QUESTIONS WE HAVE. - GREAT. THANKS, PANEL. THAT'S IT FOR OUR DISCUSSION OF CRIMINAL LAW DECISIONS THIS TERM. AMONG THE MANY IMPORTANT CASES DECIDED THIS TERM WERE A COUPLE REGARDING INTELLECTUAL PROPERTY. AND OUR PRODUCER, PAUL VAMVAS, RECENTLY SPOKE TO PROFESSOR JOHN THOMAS AT THE GEORGETOWN UNIVERSITY LAW CENTER. AFTER WE SHOW YOU THAT INTERVIEW, WE'RE GOING TO TAKE A FIVE-MINUTE BREAK SO EVERYONE CAN STRETCH THEIR LEGS. AND THEN WE'LL BE BACK WITH THE SECOND HALF OF "SUPREME COURT TERM IN REVIEW." HERE'S PAUL. - THE SUBJECT OF PATENTS MOST OFTEN BRINGS TO MIND WELL-KNOWN INVENTIONS LIKE EDISON'S LIGHT BULB OR PHARMACEUTICALS, LIKE PENICILLIN, OR PERHAPS MORE RECENTLY A NEW CELL PHONE DESIGN. BUT THIS TERM THE SUPREME COURT TOOK UP TWO CASES INVOLVING THE MUCH MORE NUANCED ISSUES INHERENT IN THE FIELD OF BIOGENETICS. THE FIRST OF THESE WAS "BOWMAN V. MONSANTO," WHICH ASKED IF THE DOCTRINE OF PATENT EXHAUSTION ALLOWS A FARMER WHO BUYS PATENTED SEEDS TO REPRODUCE THEM THROUGH PLANTING AND HARVESTING WITHOUT THE PATENT HOLDER'S PERMISSION. THE SECOND CASE WAS "ASSOCIATION FOR MOLECULAR PATHOLOGY V. MYRIAD GENETICS." THIS CASE RAISED THE FUNDAMENTAL QUESTION OF WHETHER IDENTIFYING AND ISOLATING A NATURALLY OCCURRING SEGMENT OF DNA WAS ELIGIBLE FOR A PATENT UNDER THE LAW. WITH US TO DISCUSS THESE TWO DECISIONS AND THEIR IMPLICATIONS IS PROFESSOR JOHN R. THOMAS OF THE GEORGETOWN UNIVERSITY LAW CENTER. PROFESSOR THOMAS TEACHES AND WRITES IN THE FIELD OF INTELLECTUAL PROPERTY. THANK YOU FOR JOINING US. LET'S START WITH THE "MYRIAD" DECISION. CAN YOU TELL US WHAT IT WAS THAT MYRIAD DID? - MYRIAD OBTAINED TWO PATENTS, CLAIMING TWO GENETIC SEQUENCES, BRCA1 AND BRCA2. MUTATIONS OF THOSE SEQUENCES SUGGESTED A DISPOSITION TOWARD BREAST AND OVARIAN CANCER. - AND WHY WAS THAT INSUFFICIENT TO BE LAWFULLY PATENTABLE? - THE COURT HELD THAT THOSE PATENTS DID NOT MEET THE "PRODUCT OF NATURE" DOCTRINE. UNDER THAT DOCTRINE, ITEMS THAT OCCUR NATURALLY AND AREN'T THE PRODUCT OF THE HAND OF MAN CAN'T BE PATENTED. THE COURT DETERMINED THAT THE GENETIC SEQUENCES WERE DEVELOPED BY NATURE, THAT THEIR STRUCTURE AND FUNCTION WAS DETERMINED NATURALLY AND NOT BY MYRIAD. - WELL, THE COURT SAID-- AND I WANT TO READ THIS SO I GET IT RIGHT-- THE COURT SAID, "THERE WAS NO QUESTION THAT MYRIAD HAD DONE "EXTENSIVE RESEARCH TO IDENTIFY AND ISOLATE THOSE DNA FRAGMENTS." BUT IT WROTE, "GROUNDBREAKING, INNOVATIVE, OR EVEN BRILLIANT DISCOVERY DOES NOT BY ITSELF SATISFY..." THE PATENT ACT. THAT SEEMS TO DESCRIBE A LOT OF WHAT BIOGENETIC COMPANIES DO. WHERE DOES THIS LEAVE THEM? - WELL, WHAT BIOTECH COMPANIES HAVE TO RECOGNIZE ARE THE PATENT LAWS TRY TO ENCOURAGE THE LABORS THAT LEAD TO INNOVATION BUT ALSO TRY TO DISTRIBUTE THE FRUITS OF THOSE LABORS. THE NOTION IS THAT DISCOVERIES TOO CLOSE TO THE LAB BENCH-- STUFF THAT'S FUNDAMENTAL SCIENTIFIC KNOWLEDGE-- IS BEST LEFT OPEN FOR EVERYONE TO USE. BIOTECH COMPANIES WILL STILL BE ABLE TO PATENT DOWNSTREAM DISCOVERIES, FOR EXAMPLE, SPECIFIC CURES TO DISEASES. BUT FUNDAMENTAL BIOLOGICAL KNOWLEDGE REMAINS OFF THE TABLE IN TERMS OF PATENTING AND REMAINS IN THE PUBLIC DOMAIN. - NOW, THE COURT DID DISTINGUISH BETWEEN THE DNA SEGMENT THAT IT HAD APPLIED FOR A PATENT FOR IN THE cDNA SEGMENT, OR cDNA, OR COMPLEMENTARY DNA. THEY SAID THAT WAS PATENT ELIGIBLE. CAN YOU TELL US WHY THAT IS? - SURE. THE COURT DETERMINED THAT cDNA, OR COMPLEMENTARY DNA, WHICH IS ESSENTIALLY AN ARTIFICIAL GENERATED SEQUENCE OF DNA IN THE LAB, WAS PATENTABLE. IT TURNS OUT, DNA THAT OCCURS IN THE BODY-- NATURALLY OCCURRING GENOMIC DNA, HAS A LOT OF INACTIVE PARTS. cDNA ONLY TAKES THE ACTIVE PARTS, SO THE JUDGES REASON THAT THAT WAS A SYNTHETIC MOLECULE CAPABLE OF BEING PATENTED. - ALL RIGHT. WELL, LET'S MOVE ON TO "BOWMAN V. MONSANTO." BUT BEFORE WE GO ANY FURTHER, CAN YOU TELL US A LITTLE BIT ABOUT THE DOCTRINE OF PATENT EXHAUSTION, WHAT IT MEANS, AND HOW IT APPLIES? - SURELY. THE DOCTRINE OF PATENT EXHAUSTION STATES THAT ONCE A PURCHASER LAWFULLY PURCHASES A PATENTED ARTICLE, THAT THAT ARTICLE REMAINS FREE OF THE PATENT RIGHT GOING FORWARD. SO THE PURCHASER CAN DISPOSE OF THE GOOD, CAN SELL IT TO ANOTHER, CAN USE IT AS HE WISHES, WITHOUT HAVING TO MAKE ANY FURTHER PAYMENTS TO THE PATENT OWNER. - AND HOW DID IT ARISE IN THE "BOWMAN" CASE? - IN THIS CASE, A FARMER BOUGHT SOYBEANS THAT HAD BEEN PATENTED BY MONSANTO. THEY WERE HERBICIDE-RESISTANT SOYBEANS. UNDER THE TERMS OF THE BAG TAG, OR TECHNOLOGY LICENSE UNDER WHICH HE PURCHASED THE SEED, YOU'RE ONLY SUPPOSED TO PLANT THE SEED ONCE. BUT HE TOOK THE PROGENY OF THE SEED--ITS DESCENDANTS-- AND REPLANTED THEM TO CREATE MORE HERBICIDE-RESISTANT SOYBEANS. - WELL, THE KEY HERE SEEMS TO BE THE APPLICATION OF THE EXHAUSTION DOCTRINE TO SELF-REPLICATING PRODUCTS. IS THAT WHAT THE BASIC ISSUE WAS HERE? - RIGHT. THE COURT FOLLOWED PRETTY WELL-ESTABLISHED PRINCIPLES THAT ALTHOUGH YOU CAN USE A PATENTED TECHNOLOGY, YOU CAN'T REBUILD IT OR REMAKE IT. THAT'S OUTSIDE THE REALM OF THE PATENT EXHAUSTION DOCTRINE. THE COURT REASONED THAT IF MONSANTO COULD NOT ENFORCE ITS PATENT HERE, AT BEST IT WOULD BE ABLE TO SELL ONE SOYBEAN, WHICH IT THEN COULD PROPAGATE ENDLESSLY. - ARE THERE OTHER PRODUCTS LIKE THIS, AND HOW DOES IT AFFECT THEM? - THE COURT TRIED TO NARROW ITS OPINION AND CABIN ITS REACH. AND THE COURT STRESSED THIS FACT, THAT "MONSANTO" WOULD NOT BE ABLE TO PROFIT, AND ALSO SUGGESTED "BOWMAN" HAD DONE A LOT OF WORK TO CONTINUE THE REPLICATION OF THE SOYBEANS. IT REMAINS TO BE SEEN WHETHER THIS WOULD APPLY TO OTHER PRODUCTS THAT ARE SELF-REPLICATING OR WHERE THOSE CIRCUMSTANCES DO NOT OCCUR. - THANK YOU, PROFESSOR THOMAS. YOU'VE BEEN VERY HELPFUL. BEFORE WE GO, WE WANT TO TELL YOU ABOUT ONE OTHER DECISION REACHED BY THE COURT IN THIS AREA. THAT IS "FEDERAL TRADE COMMISSION V. ACTAVIS." WHEN ONE COMPANY SUES ANOTHER COMPANY FOR PATENT INFRINGEMENT, IT IS NOT UNUSUAL, ALTHOUGH CERTAINLY COUNTERINTUITIVE, THAT RATHER THAN REACHING A SETTLEMENT WHERE THE ALLEGED INFRINGER PAYS THE PATENT HOLDER, THE PATENT HOLDER PAYS THE INFRINGER TO KEEP THEIR PRODUCT OFF THE MARKET UNTIL THE PATENT EXPIRES. THIS IS OFTEN CALLED A REVERSE PAYMENT SETTLEMENT AGREEMENT AND IS SEEN MOST OFTEN IN THE PHARMACEUTICAL INDUSTRY. THE QUESTION BEFORE THE COURT WAS WHETHER EVEN IF THIS SORT OF ARRANGEMENT DOES NOT VIOLATE ANY PATENT LAW PRINCIPLES, SUCH AN AGREEMENT CAN SOMETIMES UNREASONABLY DIMINISH COMPETITION IN VIOLATION OF THE ANTITRUST LAWS. REJECTING THE FTC's ARGUMENT THAT REVERSE PAYMENT SETTLEMENTS SHOULD BE DECLARED PRESUMPTIVELY UNLAWFUL, THE COURT HELD THAT LOWER FEDERAL COURTS SHOULD APPLY A RULE OF REASON IN DETERMINING WHETHER ANY PARTICULAR REVERSE PAYMENT AGREEMENT VIOLATES THE ANTITRUST LAWS. THE LIKELIHOOD THAT SUCH AN ARRANGEMENT WOULD RESULT IN ANTITRUST VIOLATIONS WILL DEPEND ON ITS SIZE, ITS SCALE IN RELATION TO THE PAYOR'S ANTICIPATED FUTURE LITIGATION COSTS, AND OTHER ISSUES. THE JUSTICES LEFT IT TO THE LOWER COURTS TO STRUCTURE THIS LITIGATION IN SUCH A WAY THAT WOULD NOT REQUIRE THEM TO LITIGATE EVERY POTENTIAL PATENT ISSUE. BUT AS THE COURT APPROVINGLY QUOTED, ONE SCHOLAR IS SUGGESTING, "THE QUALITY OF PROOF REQUIRED SHOULD VARY WITH THE CIRCUMSTANCES." WE'RE GOING TO TAKE A FIVE-MINUTE BREAK NOW, AND THEN WE'LL BE BACK WITH A LOOK AT THE COURT'S SAME-SEX MARRIAGE AND AFFIRMATIVE ACTION RULINGS, AS WELL AS A NUMBER OF OTHER DECISIONS.

Summary of findings

In the original trial, the defendant (Alleyne) was convicted of using or carrying a firearm in a violent crime, which carried a mandatory minimum penalty of five years' imprisonment. However, the mandatory minimum would rise to seven years if the accused were found to have "brandished" the firearm during the crime, and to ten years if it had been fired. In the original trial the judge, rather than the jury, determined that Alleyne had probably brandished the firearm during the robbery, which caused the mandatory minimum sentence to rise to seven years (which was the sentence imposed).

The Supreme Court found that the question of whether or not the accused had brandished his weapon during the robbery was not merely a "sentencing factor," which the judge could unilaterally decide, but an "ingredient of the offense," which must be assessed and decided upon by the jury. The Court also expressly overruled Harris v. United States (2002), which had reached a contrary ruling.[2]

See also

References

  1. ^ Alleyne v. United States, 570 U.S. 99 (2013).
  2. ^ "SUPREME COURT UPDATE: ALLEYNE V. UNITED STATES (11-9335) AND SALINAS V. TEXAS (12-246)". Appellate and Complex Legal Issues Practice Group, Wiggin and Dana LLP. June 19, 2013. Retrieved July 27, 2013.

Further reading

  • Applebaum, Brynn (2015). "Criminal Asset Forfeiture and the Sixth Amendment after Southern Union and Alleyne: State-Level Ramifications". Vand. L. Rev. 68 (2): 549–574.
  • Bala, Nila (2015). "Judicial Fact-Finding in the Wake of Alleyne". New York University Review of Law & Social Change. 39 (1): 1–44.

External links


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