Supreme Court Update: Maryland v. Kulbicki (14-848) and Order List

October 5, 2015 Supreme Court Update

Greetings, Court fans!

… und willkommen zurück! Oktober Term 2015 kicks off today with argument in OBB Personenverkehr AG v. Sachs (13-1067), a case which explores the contours of the commercial-activity exception to the Foreign Sovereign Immunities Act and is an early frontrunner for the title of "most fun caption to say out loud." But, believe it or not, the immunity of German state railroads from suit in the U.S. may not even be the most interesting issue on the Court's docket this term. Already, the Court has agreed to address affirmative action (Fisher v. University of Texas at Austin No. 14-981); "one person, one vote," (Evenwel v. Abbott, No. 14-940); and public-sector unions (Friedrichs v. California Teachers Ass'n, No. 14-915). And it's likely we'll see potential blockbusters concerning abortion restrictions and a return of the Obamacare contraception mandate.

As usual, we'll be following along closely and bringing you up to date when these and other decisions are handed down this Term, including the following 13 cases the Court added to its docket following its annual "long conference" last week:

Bank Markazi v. Peterson (14-770), which asks: "Whether [22 U.S.C.] § 8772—a statute that effectively directs a particular result in a single pending case—violates the separation of powers.";

Sturgeon v. Masica (14-1209), which asks: "Whether Section 103(c) of the Alaska National Interest Lands Conservation Act of 1980 prohibits the National Park Service from exercising regulatory control over State, Native Corporation, and private Alaska land physically located within the boundaries of the National Park System.";

Heffernan v. Paterson (14-1280), which asks: "Whether the First Amendment bars the government from demoting a public employee based on a supervisor's perception that the employee supports a political candidate.";

Utah v. Strieff (14-1373), which asks: "Whether evidence seized incident to a lawful arrest on an outstanding warrant be suppressed because the warrant was discovered during an investigatory stop later found to be unlawful?";

Americold Logistics, LLC v. Conagra Foods, Inc. (14-1382), which asks: "Whether citizenship of a trust for purposes of diversity jurisdiction is based on the citizenship of the controlling trustees, the trust beneficiaries, or some combination of both.";

Nebraska v. Parker (14-1406), which asks: "(1) Whether ambiguous evidence concerning the first two Solem factors necessarily forecloses any possibility that diminishment could be found on a de facto basis; and (2) Whether the original boundaries of the Omaha Indian Reservation were diminished following passage of the Act of August 7, 1882.";

MNH Government Services, Inc. v. Zaborowski (14-1458), which asks: "Whether California's arbitration-only severability rule is preempted by the Federal Arbitration Act.";

Duncan v. Owens (14-1516), which asks: "Whether it violates the Constitution for a finder of fact to infer a criminal defendant's motive when the motive is a non-element of the offense and is not directly established by the evidence at trial.";

Taylor v. United States (14-6166), which asks: "Whether, in a federal criminal prosecution under the Hobbs Act, 18 U.S.C. §1951, the Government is relieved of proving beyond a reasonable doubt the interstate commerce element by relying exclusively on evidence that the robbery or attempted robbery of a drug dealer is an inherent economic enterprise that satisfies, as a matter of law, the interstate commerce element of the offense.";

Molina-Martinez v. United States (14-8913), which asks: "Where an error in the application of the United States Sentencing Guidelines results in the application of the wrong Guideline range to a criminal defendant, should an appellate court presume, for purposes of plain-error review under Federal Rule of Criminal Procedure 52(b), that the error affected the defendant's substantial rights?";

Puerto Rico v. Valle (15-108), which asks: "Whether the Commonwealth of Puerto Rico and the Federal Government are separate sovereigns for purposes of the Double Jeopardy Clause of the United States Constitution.";

RJR Nabisco, Inc. v. European Community (15-138), which asks "Whether, or to what extent, the Racketeer Influenced and Corrupt Organizations Act ("RICO") applies extraterritorially."; and

Williams v. Pennsylvania (15-5040), which asks: (1) whether it violates the Eighth and Fourteenth Amendments when the presiding Chief Justice of a State Supreme Court declines to recuse himself in a capital case in which he, as District Attorney, personally approved the decision to pursue capital punishment; and (2) whether it violates the Eighth and Fourteenth Amendments when a potentially biased jurist participates on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive.

There were no new cert grants today. Indeed, the biggest news from today's order list was the denial of cert in United States v. Newman (15-137), the landmark Second Circuit decision that dramatically increased the Government's burden of proving "personal benefit" in insider-trading cases.

Although the Newman denial may result in more headlines, the Court also handed down its first ruling of the term today, in Maryland v. Kulbicki (14-848), in which it summarily reversed the Court of Appeals of Maryland for misapplying the Strickland standard for ineffective-assistance-of-counsel claims. James Kulbicki was convicted of murdering his mistress in 1994, based in part on the testimony of a ballistics expert who employed Comparative Bullet Lead Analysis (CBLA). By the time the Maryland Court of Appeals considered his collateral appeal in 2006, CBLA had fallen out of favor. The Maryland court essentially faulted Kulbicki's lawyers for not predicting CBLA's demise by parsing the methodology used in a report co-authored by the ballistics expert who testified against Kulbicki. In holding that Kulbicki's defense attorneys were constitutionally required to predict the demise of CBLA, the Maryland Court of Appeals failed to apply the "rule of contemporary assessment of counsel's conduct," which requires a defense attorney's performance to be measured against contemporary standards. At the time of Kulbicki's trial, CBLA was generally accepted and it was regularly admitted into evidence until around 2003. "[C]ounsel did not perform deficiently by dedicating their time and focus to elements of the defense that did not involve poking methodological holes in a then-uncontroversial mode of ballistics analysis." Accordingly, the Supreme Court granted the writ and reversed, but not before reprimanding its Maryland brethren a second time for conducting their own Internet research into CBLA, a topic our colleague Aaron Bayer explored in a recent National Law Journal column.

And, with that, you've been updated. Stay tuned as we bring you the latest throughout the Term.

Auf Wiedersehen!

Kim and Tadhg