Supreme Court Update: Glebe v. Frost (14-95) and Order List

November 19, 2014 Supreme Court Update

Greetings, Court fans!

Another week, another summary reversal (the fourth in a row to start the Term). This time, the Ninth Circuit was back in the line of fire with Glebe v. Frost (14-95), a habeas appeal concerning the difference between structural error and harmless error, and what counts as "clearly established Federal law." Once again, the Supreme Court chastised the Ninth Circuit for citing its own precedent in holding that a state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," and once again, the Court passed up the opportunity to "clearly establish" the law, itself.

Frost was convicted of robbery as an accomplice (among other things) after a state trial judge prevented him from making two seemingly contradictory points in his closing argument: that the State had failed to prove the elements of the offense; and that he did participate in the crimes, but only under duress. The Washington Supreme Court rejected the trial judge's view that state law prohibited Frost from simultaneously contesting criminal liability and arguing duress, holding that the restriction violated the U.S. Constitution's Due Process and Assistance of Counsel clauses, but it concluded that the error was harmless because the jury had heard three taped confessions and Frost's admission of guilt on the witness stand. On a subsequent habeas appeal, the Ninth Circuit (en banc) concluded that the restriction on closing argument was "structural error" (i.e., an error that requires automatic reversal) and that the Washington Supreme Court's conclusion that the restriction constituted harmless error was an unreasonable application of clearly established federal law.

The Supreme Court reversed, in a sharply worded per curiam opinion, holding that it is not clearly established that restricting closing arguments (if it is error at all) constitutes structural error. While the Ninth Circuit had cited the Supreme Court's decision in Herring v. New York (1975), that decision held only that complete denial of summation violates the Assistance of Counsel Clause; it did not expressly hold that such error is structural and, in any event, there's a significant difference between complete denial of summation and a mere restriction, as occurred here. The Court criticized the Ninth Circuit for "[a]ttempting to bridge the gap between Herring and this case" by citing two of its own decisions. Invoking its first decision of this term, Lopez v. Smith (2014), the court admonished: "As we have repeatedly emphasized . . . circuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court.'" Because there is no decision of the Supreme Court holding that restriction of summation amounts to structural error, the Washington Supreme Court's decision was not "an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." Technically, the Court didn't decide that restricting summation is not structural error (although that seems evident from the tone of the decision), only that the Court has not clearly established that it is.

Glebe thus marks the third summary reversal this Term in which the Court has focused on what constitutes "clearly established law," and who gets to decide. You'll recall that in Lopez, the Court held that it was not clearly established that a State is precluded from arguing an aiding-and-abetting theory after trying the case only on the theory that the defendant was the principal. We can also add a Cf. to last week's decision in Carroll v. Carman (2014), where the Court held that a police officer was entitled to qualified immunity because it was not clearly established in 2009 that the Fourth Amendment prohibits an officer from knocking on a secondary door (rather than the front door) when conducting a "knock and talk," but didn't take the opportunity to say whether that's clearly established now (again: it probably isn't, but that's just surmise). In Carman, the Court left open the possibility that circuit court decisions may be relevant for determining what is clearly established law for qualified-immunity purposes. But in Glebe and Lopez, habeas cases which are governed by the statutory text of AEDPA, the Court has made abundantly clear that only its decisions matter. In both contexts, however, it might help the lower courts if the High Court spent a little less time saying what the law is not and a bit more explaining just what the law is.

Moving on, the Court granted cert in two new cases Monday, which will be consolidated for oral argument: Bank of America v. Caulkett (13-1421) and Bank of America v. Toledo-Cardona (14-163) ask, in essence, whether, under the Bankruptcy Code, a debtor can completely "strip off" (i.e. wipe out) a junior mortgage debt from the amount owed to a senior creditor, when the mortgaged property is completely under water so that its value could not cover either debt.

That's all for now. We'll be back with the latest whenever it shows up.

Kim & Tadhg