Order List

October 9, 2006 Supreme Court Update

Greetings, Court Fans!
There's not much to report—the Court is off today for Columbus Day—but on Friday the Court did issue an order list in which it granted cert in two new cases.
In Travelers Casualty & Surety Co. v. Pacific Gas & Electric Co. (05-1429), the Court will consider "whether a litigant may recover attorneys' fees under a contract or state statute where the issues litigated involve matters of federal bankruptcy law?"
And in Smith v. Texas (05-11304), the Court will continue its apparent war of attrition with the appellate courts of Texas over the standards that govern capital sentencing proceedings. In November 2004, the Court overturned Smith's death sentence because of errors in the jury instructions on mitigating evidence – errors that already had led the Court to overturn a Texas death sentence in another case, but which the Texas Court of Criminal Appeals unconvincingly tried to distinguish. (If you like, you can read our short Nov. 16, 2004 summary of the Court's decision in the Supreme Court Updates section under "Publications" at www.wiggin.com.). So the Court sent the case back to Texas – where the Court of Criminal Appeals still affirmed Smith's death sentence, this time on the ground that Smith had not shown "egregious harm" because he had not proved that the jury did not consider all his mitigating evidence anyway. Smith again sought cert, aided by an amicus brief filed by four former federal appellate judges. The Court granted his petition and will consider the following questions: (1) Is it consistent with this Court's remand in this case for the Texas Court of Criminal Appeals to deem the error in petitioner's case harmless based on its view that jurors were in fact able to give adequate consideration and effect to petitioner's mitigating evidence notwithstanding this Court's conclusion to the contrary? (2) Can the Texas Court of Criminal Appeals, based on a procedural determination that it declined to adopt in its original decision that this Court then summarily reversed, impose on remand a daunting standard of harm ("egregious harm") to the constitutional violation found by this Court?
That's it for news, but you also might be interested to know that the Court has begun to post oral argument transcripts to its web site within hours after an argument has concluded. You can find them at www.supremecourtus.gov/oral_arguments/argument_transcripts.html. So if you've been waiting for months to get a read on what the Court might do in tomorrow's cases (unlikely, unless you follow things like FCC regs on compensation for coinless phone calls), you can check tomorrow afternoon.
Thanks for reading!
Ken & Kim

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