Deck v. Missouri (04-5293) and Medellin v. Dretke (04-5928)

May 25, 2005 Supreme Court Update

Greetings, Court fans!
Here's the second (and final) installment from Monday's torrent of opinions. We'll get right to it.
In Deck v. Missouri (04-5293), the Court held (7-2) that the Constitution forbids the use of visible shackles during a capital trial's penalty phase unless the use is justified by "an essential state interest" that is "specific to the defendant on trial." The Court, led by Justice Breyer, first found that the routine use of visible shackles has long been precluded in the guilt phase of criminal trials, dating to English common law. While this rule initially may have been animated by concerns regarding torture and physical pain caused by shackles, the Court found that the modern cases have supplanted this rationale with three fundamental principles: (1) visible shackling can undermine the presumption of innocence; (2) shackles can interfere with a defendant's ability to participate in his defense and communicate with his lawyer; and (3) the use of shackles affronts the dignity and decorum of the court process. The last two elements are still present in penalty proceedings. While the presumption of innocence is inapplicable, "related" concerns for the accuracy of the decision are present: The use of shackles signals to the jury that the defendant is dangerous, so "shackles can be a thumb on death's side of the scale." Therefore, due process precludes routine shackling in the penalty phase absent a judicial finding that an essential state interest particular to the defendant, such as security or the risk of escape, warrants their use. Prejudice is presumed unless the state can show beyond a reasonable doubt that shackling did not impact the verdict.
Justice Thomas, joined by Scalia, dissented. If you have any interest in the history of the use of shackles in English and US courts, this is a must read. Otherwise, the bottom line is that Thomas reads the English rule against shackles as seeking to prevent physical pain and torture and to ensure that defendants (who did not have counsel) were not so distracted by pain that they could not mount a defense. Thomas finds no consensus regarding the use of modern, pain-free shackles that could inform our understanding of due process. Thomas also disagrees with the presumption of prejudice: the jurors are aware that the defendant has been convicted of a capital crime, and assuming that they are influenced by the sight of handcuffs and shackles during the penalty phase "does not comport with reality."
The last decision from Monday was in Medellin v. Dretke (04-5928), a federal habeas case. In a curious 5-4 per curiam opinion, the Court dismissed the writ of certiorari as improvidently granted, thereby avoiding a thorny issue about the effect of international law in a capital case -- an issue that got Justice Kennedy into trouble in Roper v. Simmons (see our March 2 update). The following is probably for international law junkies only, but here goes: Medellin, a Mexican national on death row in Texas, challenged his detention on the ground that Texas never notified him of his right under the Vienna Convention on Consular Relations to contact the Mexican consulate after his arrest. The District Court denied his petition, and Medellin sought a certificate of appealability from the Fifth Circuit. Meanwhile, Mexico took the United States to the International Court of Justice (ICJ), arguing that the United States had violated the Convention in Medellin's case and the cases of 50 other Mexican nationals. The ICJ agreed, ruling that the United States had to provide, "by means of its own choosing, review and reconsideration" of Medellin's conviction and sentence. The Fifth Circuit nevertheless denied Medellin a certificate of appealability, holding that the Convention did not create an individually enforceable right and that Medellin's international law claim was not substantial enough to support a federal habeas petition. The Court granted cert on the effect of the ICJ's ruling, and heard oral arguments in March.
On Monday, it dismissed the writ of cert based on several recent developments. First, a month before oral argument, the President announced that the United States would adhere to the ICJ ruling "by having State courts give effect to the decision" (the announcement set off a bit of a firestorm, as it is unclear just how the President can order the States around like this, but we'll leave that issue for another day, along with the subsequent announcement that the United States is withdrawing from the Convention, meaning this issue will never arise again). Second, relying on the President's announcement, Medellin filed a new state habeas petition and asked the Court to stay its proceedings pending the outcome. The Court did not simply stay its proceedings, however, but dismissed the writ of cert because: (1) the new Texas proceeding might provide Medellin with "the review and reconsideration" required by the ICJ ruling, thereby mooting the issue before the Court; and (2) if Medellin or Texas did eventually seek sought Court review of the Texas outcome, the case would be in a better procedural posture.
As if the case weren't complicated enough, Justice Ginsburg wrote a concurrence, and O'Connor, Souter and Breyer wrote dissents. There's too much to summarize here, but these opinions reveal that a lot of back-and-forth led to what otherwise looks like an uncontroversial per curiam decision. The case seemed to break down like this: Initially, four Justices (Stevens, Souter, Ginsburg, and Breyer) would have stayed Medellin's case pending the result in Texas, four others (the Chief, Scalia, Kennedy and Thomas) wanted simply to dismiss the writ, but neither camp could get Justice O'Connor, who wanted to reach the merits because state violations of the Convention were "a vexing problem" and "questions of national importance." Realizing a stay was off the table, Stevens, Souter and Breyer joined up with O'Connor, yielding a four-Justice dissent that would have ordered the Fifth Circuit to address Medellin's international law claims. That was too much for Ginsburg, who thought that doing so would create competing Fifth Circuit and Texas proceedings, so she joined the dismissal camp to generate a five-Justice majority.
In sum, Monday was an eventful day, and the remaining opinion days should be equally eventful with 29 opinions still outstanding. Until next week, thanks for reading!
Kim & Ken
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400.