Supreme Court Update: Greene v. Fisher (10-637), KPMG LLP v. Cocchi (10-1521), Warren v. Dixon (10-1540), Buck v. Thaler (11-6391) and Order List

November 11, 2011 Supreme Court Update

Greetings, Court fans!

The Court is in the thick of arguments and has been clearing out what it apparently believes are some of the "easy" cases. The Court issued two per curiam decisions Monday and released the first signed opinion of the Term on Tuesday!

The first signed opinion came in a habeas case, Greene v. Fisher (10-637). Greene was arrested, along with four co-conspirators, for a robbery and murder in Pennsylvania. Greene did not confess, but was implicated by two co-conspirators' confessions. Greene tried to sever his trial, arguing that his co-conspirators' confessions should not be introduced at his trial because he would not have an opportunity to cross-examine them. The trial court denied Greene's motion to sever, but ordered the Commonwealth to redact any proper names from the confessions. Greene was convicted, and the Pennsylvania Superior Court affirmed. The Superior Court held that the redaction of proper names from the confessions cured any Confrontation Clause problems. Greene petitioned for allowance of appeal to the Pennsylvania Supreme Court. While the petition was pending, the U.S. Supreme Court decided Gray v. Maryland (1998), holding that Confrontation Clause problems are not cured by redactions that replace a proper name with an obvious blank or symbol that notifies the jury that a name has been deleted. The Pennsylvania Supreme Court initially granted Green's petition but later dismissed the appeal as improvidently granted.

Greene's next step was to file a federal habeas petition. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that a federal court may not grant habeas relief to a state prisoner with respect to any claim that was "adjudicated on the merits in State Court proceedings unless the adjudication of the claim . . . resulted in a decision that was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States." The District Court denied the petition. It found that the decision of the Pennsylvania Superior Court – the last state court to adjudicate Green's claims on the merits – was not contrary to "clearly established" federal law because Gray had not been decided at that time. The Third Circuit affirmed, as did a unanimous Court.

Justice Scalia wrote for the Court. As the Court held last Term in Cullen v. Pinholster, the AEDPA's "backward-looking language" requires federal courts to focus on what the state court knew at the time of its decision. The Court rejected Greene's argument that its earlier decision in Teague v. Lane (1989) permitted a prisoner seeking habeas relief to rely on new constitutional rules of criminal procedure announced before his conviction became final. The AEDPA's relitigation bar requires a completely separate analysis of "clearly established Federal law" at the time of the state court's decision. The Court also rejected Greene's attempt to make the Pennsylvania Supreme Court's dismissal – which came after Gray – the relevant state court decision for AEDPA review. AEDPA's language clearly refers to an adjudication on the merits, and the Pennsylvania Supreme Court's dismissal on procedural grounds was not on the merits. To add insult to injury for Greene, the Court pointed out that Greene might have been able to obtain relief under Gray if he had petitioned the Court for cert on his direct appeal, or if he had sought habeas relief in state court, instead of going right to a federal habeas petition.

In KPMG LLP v. Cocchi (10-1521), the Court again made clear that if you're hoping to have cert granted and bring home a win, your best bet is to bring a case attempting to enforce an arbitration agreement. In a long line of decisions, culminating in last Term's AT&T v. Concepcion, the Court has reiterated that these agreements will be enforced, per their terms, under almost all circumstances. The KPMG case involved a situation where limited partners brought suit against KPMG for its auditing of certain funds in which the partnership had invested. KPMG's auditing agreement with the funds required arbitration of any disputes relating to its services, including any claim by a person or entity for whose benefit the services were provided. The plaintiffs asserted four claims, including two claims that the Florida courts below had found to be "direct claims" by the limited partners, and thus not subject to the arbitration agreement. The Florida courts then denied KPMG's motion to compel arbitration, apparently not considering whether or not the other two claims were subject to arbitration. The Court swiftly reversed in a per curiam decision. A court cannot decline to require arbitration of arbitrable claims just because they are combined with claims that may be not arbitrable – even if this results in potentially inefficient piecemeal litigation. The Court did not address the substantive issue of whether the remaining two claims were in fact arbitrable, leaving that to the Florida Court of Appeal in the first instance.

Next up, in Warren v. Dixon (10-1540), the Court addressed (yet again) the high bar for federal habeas relief. You know things are headed south for the petitioner when the Court begins with a detailed recitation of how Dixon brutally murdered his victim by tying him up, beating him and proceeding to bury him alive in order to steal his car. Following the victim's murder, Dixon bumped into police when he was picking up his own impounded vehicle. The police gave him Miranda warnings and began to ask him about the victim's disappearance. Dixon declined to answer any questions without his lawyer. Several days later, police arrested Dixon on forgery charges relating to Dixon's sale of the victim's car. Police elected not to Mirandize him again, in light of Dixon's decision to remain silent the last time, and interrogated him for about 45 minutes. Dixon admitting to forging documents (claiming he had the victim's permission), but said he had nothing to do with the victim's disappearance and suggested that the victim might have travelled out of state. Detectives pressed him to confess before his codefendant turned state's evidence, but Dixon remained mum. About four hours later, after a trip to another facility and back, Dixon told police that he heard they had found a body, asked whether the codefendant was in custody, and told police he had talked with his attorney and "I want to tell you what happened." The police then read Dixon his Miranda rights, obtained a signed waiver, and Dixon confessed. Shortly thereafter, after being again advised of his Miranda rights, Dixon gave a detailed taped confession.

The trial court initially excluded all three confessions, but on interlocutory appeal, the Ohio Court of Appeals found Dixon's murder confessions (though not his forgery confession) admissible. Dixon was convicted and sentenced to death. The Ohio Supreme Court affirmed his conviction, finding that the murder confessions were admissible because they were voluntary. The district court denied habeas relief, but the Sixth Circuit reversed. To do so, it had to conclude that the Ohio Supreme Court's ruling "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fair-minded disagreement." The Sixth Circuit found three such errors: (1) police could not speak to Dixon without counsel after he invoked his right to counsel during his first chance meeting with police; (2) police violated Dixon's Fifth Amendment rights when they urged him to cut a deal before his accomplice did; and (3) the Mirandized murder confessions were inadmissible because they were the product of a "deliberate question-first, warn-later strategy." The Court reversed, in a per curiam order. Not only was the standard for habeas relief not met, but it was not clear to the Court that the Ohio Supreme Court erred at all because: (1) Dixon's initial meeting with police was not a custodial interrogation and the Court has never held that a person can anticipatorily invoke his Miranda rights in a noncustodial setting; (2) the common police tactic of urging a suspect to confess before another suspect does so has never been held unconstitutional; and (3) there was a significant break between the unwarned forgery confession, during which Dixon denied the murder, and the unrelated, warned, murder confessions and all signs pointed to the fact that the latter were voluntary.

In addition to the three decisions, the Court denied cert in a death penalty case, Buck v. Thaler (11-6391), prompting a two Justice dissent and three Justice statement respecting the denial of cert. In Texas, a jury must find that a capital defendant poses a continuing threat to society before it may impose the death penalty. Buck, who is African-American, claimed he was denied a fair trial when, during the sentencing phase of his murder trial, an expert witness called by the defense testified that African-Americans pose a greater risk of "future dangerousness." Although the expert ultimately testified that Buck was unlikely to commit violent criminal acts if given a life sentence, on cross-examination he confirmed, in the words of the prosecution, that "the race factor, black, increases the future dangerousness for various complicated reasons." In summation, the prosecutor argued to the jury that the expert "told you that there was a probability that [Buck] would commit future acts of violence."

Buck's was not the first Texas death penalty case in which this expert opined about the relationship between race and future dangerousness. In one, the State of Texas confessed error, stating that "the infusion of race as a factor for the jury to weigh in making its determination violated [the defendant's] constitutional right to be sentenced without regard to the color of his skin." The Texas attorney general later identified six other cases – including Buck's – involving similar testimony from the same expert, and stated that "it is inappropriate to allow race to be considered as a factor in our criminal justice system." In five of these cases, the state declined to invoke any potential procedural bars (such as timeliness) to challenges of the sentences and conceded error. But in Buck's case, the state elected to assert a procedural bar to federal habeas review. According to the state, Buck's case was different because Buck himself had called the expert to the stand. The district court applied the procedural bar and dismissed Buck's habeas petition. Buck tried to reopen the judgment under Rule 60 to inform the district court that the expert had been a defense witness in two of the other cases, but the district court denied both that motion and one under Rule 59(e) to alter or amend the judgment. The Fifth Circuit denied a certificate of appealability to review those two judgments.

Justice Sotomayor, joined by Justice Kagan, dissented from the denial of cert, stating that Buck met the standard for a certificate of appealability and that his sentence was "marred by racial overtones." They cited "misleading remarks and omissions" by prosecutors who had mischaracterized two of the cases in which the expert had offered testimony about race and future dangerousness. Although Buck's own attorneys called the expert to the stand, what mattered to the dissenters was the prosecution's effort on cross-examination to elicit testimony suggesting that Buck's race made him more dangerous.

Justice Alito, joined by Justices Scalia and Breyer, responded with a statement conceding that the expert's testimony "would provide a basis for reversal of [Buck's] sentence if the prosecution were responsible for presenting that testimony to the jury," but stressing that the expert was the defense's own witness and that Buck's attorney was the first to elicit the expert's opinion about the correlation between race and future dangerousness. These Justices noted that the prosecutor confined the colloquy with the expert to the correlation between race and future dangerousness about which he had testified on direct examination. And they stressed that Buck's was the only case in which the expert offered the objectionable testimony on direct examination by the defense, "[t]hus, this is the only case in which it can be said that the responsibility for eliciting the offensive testimony lay squarely with the defense."

The Court granted cert in the following cases:

Magner v. Gallagher (10-1032), which asks: (1) whether disparate impact claims are cognizable under the Fair Housing Act; and (2) if such claims are cognizable, whether they should be analyzed "under the burden shifting approach used by three circuits, under the balancing test used by four circuits, under a hybrid approach used by two circuits, or by some other test"?

Miller v. Alabama (10-9646) and Jackson v. Hobbs (10-9647), to be argued in tandem, concerning the constitutionality of life without-parole sentences for fourteen-year-olds. Specifically, the cases ask whether the Eighth and Fourteenth Amendments' prohibition against cruel and unusual punishments are violated when: (1) a sentence of life without-parole is imposed on a fourteen-year-old convicted of a homicide; (2) such a sentence is imposed upon a fourteen-year-old "as a result of a mandatory sentencing scheme that categorically precludes consideration of the offender's young age or any other mitigating circumstances"; or (3) such a sentence is imposed upon a fourteen-year-old who "did not personally kill the homicide victim, did not personally engage in any act of physical violence toward the victim, and was not shown even to have anticipated . . . that anyone be killed."

Finally, the Court asked the SG to weigh in on the cert petition in Saint-Gobain Ceramics v. Siemens-Medical Solutions (11-301), which would ask: (1) "Whether the Patent and Trademark Office's (PTO) presumptively valid finding that an invention is not obvious and is thus patentable over a prior art patent is impermissibly nullified or undermined when a jury is allowed to find, by a mere preponderance of the evidence, that the patented invention is ‘insubstantially different' from the very same prior art patent, and thus infringes that prior art patent under the ‘doctrine of equivalents'"; and (2) Whether "the Federal Circuit's failure to impose a heightened evidentiary standard to ensure that juries do not use the doctrine of equivalents to override the PTO's presumptively valid non-obvious determinations undermines the reasonable reliance of competitors and investors on such PTO determinations."

We'll likely be back next week with more orders and decisions. Until then, enjoy the weekend and, as always, thanks for reading!

Kim & Jenny

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