Hedgpeth v. Pulido (07-544) and order list

December 9, 2008 Supreme Court Update

Greetings, Court Fans!
We have another hodgepodge of news to report from the last few weeks, but make no mistake, there is some big news in the mix. On Friday, the Court granted cert in two new cases, including al-Marri v. Pucciarelli (08-368), which asks: "Does the Authorization for Use of Military Force (AUMF), 115 Stat. 224, authorize—and if so does the Constitution allow—the seizure and indefinite military detention of a person lawfully residing in the United States, without criminal charge or trial, based on government assertions that the detainee conspired with al Qaeda to engage in terrorist activities?" So the detention cases will roll onward. Friday's second grant came in Gross v. FBL Financial Services, Inc. (08-441), which asks a similarly pointed question of note to antidiscrimination lawyers: "Must a plaintiff present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case?"
As for decisions, the Court issued another per curiam order last week, reversing the judgment of the Ninth Circuit in Hedgpeth v. Pulido (07-544) and remanding for that court to determine whether a trial court's erroneous jury instructions warranted federal habeas relief. The case involved the application of the general verdict rule, whereby a verdict cannot stand if the jury was instructed on alternative theories of guilt and may have relied on an invalid one. Pulido was convicted of felony murder when he aided and abetted a crime, but the jury was allowed to convict even if it found that he intended to aid the underlying felony only after the murder had occurred. The Ninth Circuit held that this "structural" error required reversal absent "absolute certainty" that the jury followed a proper route to guilt. The Court rejected that approach and remanded for harmless-error analysis, whereby the error must have had "substantial and injurious effect or influence" in affecting the verdict before reversal was required (as constitutional errors can be harmless). In an unusual development, there were three dissenting votes from the Court's unsigned opinion, with Justice Stevens writing for himself and Justices Souter and Ginsburg. Stevens clearly thought the Court was piling on the Ninth Circuit with this case. In his view, the Ninth Circuit's use of the term "structural error" was merely a misnomer, that court effectively applied harmless-error analysis, and there was no point in making it repeat the exercise now when the case could simply be affirmed and relief granted.
In other news, the Court has asked the SG to brief the cert petitions in three new cases, indicating that the petitions have caught at least someone's eye. Two of the new cases are Mac's Shell Service, Inc. v. Shell Oil Products, Inc. (08-240) and Shell Oil Products LLC v. Mac's Shell Service, Inc. (08-372), and they ask, under the Petroleum Marketing Practices Act, "[w]hether a service station operator that continues to operate its franchise – using the same trademark, selling the same fuel, and occupying the same premises – can bring an action claiming that it was ‘constructively terminated' in violation of the Act." The third SG invite came today in Graham County Soil & Water Conservation District v. United States ex rel. Wilson (08-304) , which asks "[w]hether an audit and investigation performed by a State or its political subdivision constitutes an "administrative . . . report . . . audit, or investigation" within the meaning of the public disclosure jurisdictional bar of the False Claims Act, 31 U.S.C. § 3730(e)(4)(A)."
And with that, we are done for now. Thanks again for reading!
Ken & Kim

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, or any other member of the Practice Group at 203-498-4400