Supreme Court Update: Maslenjak v. United States (16-309), Weaver v. United States (16-240), McWilliams v. Dunn (16-5294), Turner v. United States (15-1503)

June 23, 2017 Supreme Court Update

Greetings, Court Fans!

The Nine were back in action this morning, handing down three decisions in cases raising important issues of criminal law and procedure. Briefly: In Maslenjak v. United States (No. 16-309) (one of several "crimmigration" cases this term) the Court held that, where a naturalized citizen is alleged to have procured citizenship illegally, there must be a significant causal connection between the defendant's alleged illegal act and the procurement of citizenship before citizenship can be revoked. In Weaver v. United States (No. 16-240), the Court resolved a circuit split over whether a defendant must show prejudice when alleging that his lawyer's ineffectiveness caused a structural error at trial (yes, at least where the error is shutting out the public from voir dire). And in Turner v. United States (15-1503), the Court upheld the convictions of two defendants in an infamous D.C. murder case, holding that evidence not disclosed to the defense was not material under Brady v. Maryland. This Update will cover each of today's decisions, plus Monday's decision in McWilliams v. Dunn (No. 16-5294), where the Court ruled that a capital defendant was not provided with an effective and independent mental-health expert, as required by Ake v. Oklahoma (1985). So it's crim-law all the way down, today. (Sorry, patent nerds!)

We'll start with Maslenjak v. United States (No. 16-309), which ties together elements of criminal law and fundamental notions of citizenship. A federal statute, 18 U.S.C. § 1425(a), makes it a crime to "knowingly procure[], contrary to law, the naturalization of any person." And another statute, 8 U.S.C. § 1451(e), provides that if you violate § 1425(a) in procuring your own naturalization, your citizenship is automatically revoked. In Maslenjak, all the Justices agreed that § 1425(a) requires a causal connection between the defendant's alleged illegal act and the defendant's receipt of U.S. citizenship. But the Justices were less unanimous on the appropriate standard of causation, or even whether the Court should answer that question in the first instance.

The petitioner, Divna Maslenjak, was an ethnic Serb who lived in Bosnia in the 1990s during the civil war. She and her family sought refugee status in the United States. In the course of doing so, she told immigration officials under oath that she feared persecution in Bosnia, in part because her husband had evaded service in the Bosnian Serb army. They were granted refugee status, and a few years later, she applied for naturalization. That naturalization application asked whether Maslenjak had ever provided false or misleading information or lied to government officials in immigration matters. Maslenjak answered "no" and swore her statements were true. But, it turns out, Maslenjak's husband was no deserter; instead he was an officer in the Bosnian Serb army who had participated in a massacre of 8000 Bosnian Muslim civilians. When the feds found out, they charged Maslenjak with violating § 1425(a), alleging that in the course of procuring her naturalization, she violated a third statute prohibiting the making of false statements to immigration officials in a naturalization proceeding. Those false statements were her answers on the naturalization application saying that she had not previously lied when seeking refugee status. Agreeing with the government, the district court instructed the jury that the government did not have to prove that Maslenjak's false statements on her naturalization application in any way affected the government's decision to approve her application; it was enough simply to prove that she made a false statement. She was convicted and stripped of citizenship, and the Sixth Circuit affirmed

The Supreme Court reversed, more or less unanimously. Writing for six, Justice Kagan quickly disposed of the government's argument that § 1425(a) did not require any causal connection between a defendant's violation of the law and the procurement of citizenship, instead only requiring a temporal connection (i.e., that the violation of law occurred while procuring citizenship). The natural reading of the phrase to "procure contrary to law" is that the illegal act somehow contributed to the procurement. As she observed, to "procure a painting illegally" implies theft or fraud or some other crime that helped you get a painting you would not have otherwise obtained. If you said that you had procured a painting illegally, but your illegal act contributed in no way to obtaining the painting, no one would know what you were talking about. The government's interpretation of § 1425(a) not only violated ordinary English usage, it was at odds with common sense, since it would require revocation of citizenship based on an applicant telling the most irrelevant lie for the most inconsequential reason (such as lying about their natural hair color to avoid the embarrassment of revealing a dye job). Had Congress intended such an absurd result, it is highly doubtful it would have expressed it in the language of § 1425(a). Since the jury was instructed that it could convict without any proof of causal connection, a unanimous court (the majority plus three concurring in the judgment) agreed that Maslenjak's conviction had to be vacated.

But what causal connection is required? Justice Gorsuch, joined by Justice Thomas, thought that question was best left to the lower courts. And Justice Alito, writing alone, thought the appropriate standard was the familiar one of "materiality." But Justice Kagan and the majority decided to resolve the issue with a thorough explanation of the showing the government must make, at least where (as in this case) the predicate crime was a false statement made to government officials. This kind of illegality could "procure" naturalization only where the false statement sufficiently altered the government's investigation and adjudication of a naturalization application to have influenced the award of citizenship. Because naturalization decisions turn on objective, statutorily defined criteria, that question will often be easily answered, because the defendant's lie will go directly toward the defendant's admissibility under the statutory factors. But in some cases, the fact misrepresented by the defendant might not have itself disqualified the defendant from naturalization, but could still have affected the ultimate outcome by preventing the government from investigating matters that would have uncovered some other disqualifying facts. In such cases, the government would have to prove that the misrepresented fact was sufficiently relevant that a reasonable official would have investigated further, and that such investigation would likely have disclosed some legal disqualification from naturalization. Because the jury was not properly instructed here, Maslenjak's conviction was overturned and the case remanded. Any guesses whether a jury will conclude that lying about your husband's complicity in the murder of 8,000 civilians would alter the adjudication of a naturalization application? While Maslenjak's goose is likely cooked on remand, the Court did clarify a significant limitation on the scope of § 1425(a): The statute is only a tool for denaturalizing people who are not actually qualified for citizenship. Thus, no matter how influential a defendant's misrepresentation is, the defendant can always offer the affirmative defense that she is statutorily qualified for citizenship.

Next up, in Weaver v. Massachusetts (No. 16-240), the Court resolved a circuit split over whether a defendant alleging ineffective assistance of counsel for failing to object to a structural error during a trial, must show prejudice. As a general matter, of course, a defendant advancing a claim of ineffective assistance must show that his lawyer's alleged deficiency prejudiced his defense, meaning there is a reasonable probability that, but for the attorney's error(s), the result of the trial would have been different. But the Court has also recognized that certain kinds of constitutional errors at a trial—known as structural errors—require automatic reversal. But what about the situation where it is an attorney's error that results in a structural error? Must a defendant show that the error may have mattered (as ineffective-assistance of counsel requires)? Or is reversal automatic (as structural-error doctrine provides)? In Weaver, the Court confronted this irresistible-force paradox of habeas corpus jurisprudence, but only for the specific structural error at issue in the case: the denial of the defendant's right to a public trial during jury voir dire.

The petitioner, Kentel Weaver, was charged with first-degree murder in Massachusetts state court. Because the courtroom was too small to accommodate the entire jury pool, the presiding judge held jury voir dire in stages, with many potential jurors being forced to wait in the hallway until there was space for them in the courtroom. Given this lack of space, a court officer excluded from the courtroom anyone other than potential jurors, including Weaver's mother and her minister. Mrs. Weaver complained to Weaver's attorney, but the attorney believed the courtroom closure was constitutional and did not discuss the matter with Weaver or raise an objection. Weaver was ultimately convicted and sentenced to life in prison. Though Weaver did not raise the public-trial issue on direct appeal, years later, he moved for a new trial in state court, arguing that his attorney had provided ineffective assistance by failing to object to the courtroom closure. The trial court agreed that the courtroom closure was unjustified and that trial counsel's failure to object was erroneous. But it denied Weaver's motion for a new trial because he had not offered any evidence that this error was prejudicial. The Massachusetts Supreme Judicial Court affirmed, and the Supreme Court then granted certiorari to resolve lower courts' disagreement over whether a defendant must demonstrate prejudice in cases where a structural error was not preserved or raised on direct review but only later via an ineffective assistance of counsel claim.

Justice Kennedy took the pen for a six-Justice majority. But before getting to the analysis, he stated a significant limitation: The Court had granted certiorari "specifically and only in the context of trial counsel's failure to object to the closure of the courtroom during jury selection." With that bit of deflating foreshadowing out of the way, Justice Kennedy commenced a discussion of structural errors. In Chapman v. California (1967), the Court adopted the general rule that a constitutional error at trial does not require automatic reversal of a conviction; instead, the verdict stands if the government can show beyond a reasonable doubt that the error did not contribute to the defendant's conviction. But certain types of errors can never be deemed harmless beyond a reasonable doubt. These errors, now generally called structural errors, include violations of the defendant's right to conduct his own defense, his right to select his own attorney, and the right of an indigent defendant to have counsel provided. When such errors are preserved and raised on a direct appeal, reversal is automatic; the government is not given an opportunity to show the error was harmless. Importantly, however, there are several rationales for why a particular error is deemed structural: Some, such as the denial of a right to an attorney, result in such fundamental unfairness that the trial is necessarily tainted. But other errors are deemed structural because the right at issue protects some interest other than ensuring a fair trial result, such as the defendant's right to conduct his own defense, which is based more on principles of the defendant's autonomy than ensuring trial accuracy.

Having set the stage, Kennedy turned to the specific right at issue in Weaver's case: the right to a public trial during voir dire. That right is not absolute—courts can close a trial to the public in certain circumstances—and while it is partially intended to protect the integrity of the trial, it also protects other interests, such as the public's right to observe. Crucially, then, denial of the right to a public trial does not necessarily mean that the trail was fundamentally unfair. Turning to Weaver's IAC claim, Kennedy intoned the familiar Strickland standard requiring a defendant to show that an attorney's error was substantial, and that the error "prejudiced the defense" meaning that "but for the counsel's unprofessional errors, the result of the proceeding would have been different." There was no way Weaver could satisfy the prejudice prong of Strickland, because he had no basis for claiming that the brief closure of the jury voir dire to the public in any way affected the result (either of jury selection or of his trial). But, he argued, Strickland and the cases following it provide that even if there is no showing of a reasonable probability of a different outcome, a defendant is still entitled to relief on an ineffective assistance claim if the defendant shows that his attorney's errors "rendered the trial fundamentally unfair." Assuming "for the analytical purposes of this case" that this interpretation of Strickland was correct—an assumption two concurring opinions by Justices Thomas and Alito took great care to spit on—the Court nonetheless concluded that this standard was not met in Weaver's case, because the limited denial of his right to a public trial was not significant enough to make the trial fundamentally unfair. Thus, although Weaver's counsel's deficient performance led to a structural error, he was not entitled to a new trial. But this narrow result—limited solely to the specific structural error in Weaver's case—leaves unresolved what happens when other structural errors are raised for the first time in the context of an ineffective assistance of counsel claim.

Justice Breyer, joined by Justice Kagan, dissented. In his view, the majority's error was in its categorization of structural errors. Justice Breyer saw the doctrine much more simply: particular errors are deemed structural because their effects are unknowable and it is therefore impossible to evaluate (or for any party to prove) whether the error had an effect on the outcome of the case. That is why the government is not given the opportunity to prove that a structural error was harmless. And for those very same reasons, a defendant raising an ineffective assistance claim could never demonstrate (and hence shouldn't be required to) a reasonable probability that his attorney's deficient performance may have affected the result of trial or that it made the trial fundamentally unfair. Thus the basic rationale of the structural error doctrine makes it unnecessary for a defendant like Weaver to show that his attorney's error mattered—the error is structural precisely because that question could never be answered.

Turning from ineffective assistance of counsel to ineffective assistance of experts, in McWilliams v. Dunn (No. 16-5294), a closely-divided Court wrestled with the type of mental health expert assistance that must be provided to an indigent criminal defendant. In Ake v. Oklahoma (1985), the Court held that when an indigent defendant's "sanity at the time of the offense is to be a significant factor at trial" or when an indigent defendant's "mental condition" would be "relevant . . . to the punishment he might suffer," then "the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in the evaluation, preparation, and presentation of the defense." Since the Ake opinion was handed down over three decades ago, the lower courts have diverged on one key question: whether Ake requires an independent mental health expert retained specifically for the defense team, or whether a neutral expert available to both parties will suffice. The Court granted certiorari in McWilliams to answer this very question; but the majority in ended up punting on that question, choosing instead to resolve the matter on the narrower factual grounds specific to the case.

McWilliams was convicted of the 1984 rape and murder of a woman during a convenience-store robbery. In advance of his sentencing hearing, a court-appointed psychologist—Dr. John Goff—examined McWilliams and concluded that he was exaggerating his symptoms but nevertheless probably had an "organic personality syndrome." Dr. Goff's report was filed just two days before the sentencing hearing. Then, just one day before the sentencing hearing, McWilliams's appointed counsel received mental health records from the Alabama Department of Corrections. At the sentencing hearing, McWilliams' counsel pleaded with the judge for time to review the new information and for the assistance of an appropriate expert to analyze the findings. The judge denied these requests, and sentenced McWilliams to death. As the trial judge saw it, McWilliams was "feigning, faking, and manipulative," and "was not and is not psychotic." On direct appeal, McWilliams argued that the trial court denied him the right to meaningful expert assistance as required by Ake. The state appellate courts rejected this argument, and so McWilliams filed a federal habeas petition making the same argument. The District Court and the Eleventh Circuit rejected his argument, but McWilliams finally found five (well, ten) sympathetic ears at the Supreme Court.

Writing for the 5-4 majority, Justice Breyer concluded that McWilliams did not receive the expert assistance required by Ake (and, more specifically, that the state courts' conclusion that he had was clearly unreasonable). Ake requires that a state provide four things to an indigent defendant: "‘access to a competent psychiatrist who will conduct an appropriate [1] examination and assist in [2] evaluation, [3] preparation, and [4] presentation of the defense.'" (The brackets and italics are courtesy of Justice Breyer.) The majority conceded that the examination prong might well have been satisfied here by Dr. Goff's examination, but it concluded that the other three prongs—evaluation, preparation, and presentation—were not. No expert helped the defense evaluate Dr. Goff's report or the extensive mental health records. No expert helped the defense prepare and present arguments. And no expert testified at trial or helped the defense prepare witnesses. Because "Alabama's provision of mental health assistance fell so dramatically short" of "even Ake's most basic requirements," the majority reasoned that there was no reason to venture further to decide whether Ake requires an independent expert retained specifically for the defense team. Justice Breyer acknowledged that the Court granted certiorari on that larger question, but he saw no reason "to issue a sweeping ruling when a narrow one will do." Especially (he didn't say) when that sweeping ruling would lose Justice Kennedy's vote. The Court sent the case back down to the Eleventh Circuit to determine whether the Alabama court's errors had the "substantial and injurious effect or influence" required to warrant a grant of habeas relief.

Justice Alito penned a forceful dissent, joined by the Chief, Thomas, and Gorsuch. The dissent runs a few pages longer than the majority opinion, and Alito spends most of those pages excoriating the majority for avoiding the question presented and instead deciding the case on a case-specific rationale that the Justices had declined to review. This bait and switch, Alito steamed, was a "most unseemly maneuver" that "represents an inexcusable departure from sound practice." As a result, "[t]he Court leaves in place conflicting lower court decisions regarding the meaning of a 32-year-old precedent" while "deciding a question on which we expressly declined review."

Finally today, in Turner v. United States (No. 15-1503), the Court closed the books on a thirty-three year old murder case that gripped the nation's capital. In 1984, Catherine Fuller was kidnapped and murdered inside an alley garage in Northeast D.C. She'd been robbed, severely beaten, and sodomized with an object causing extensive internal injuries. A few months later, a group of defendants (including the seven petitioners in this case) were indicted. The Government's theory at trial was that Fuller had been attacked in the alley by a large group of individuals, including petitioners and two uncharged assailants, Alston and Bennett. The centerpiece of the case was Alston and Bennett's cooperating testimony, which was consistent in describing how Fuller was brutally attacked by a large group of individuals, including petitioner and Alston and Bennett themselves. Several other witnesses also testified that Fuller was attacked by a group and one of the petitioners, himself gave a statement to detectives describing how he had been part of a large group that forced Fuller into the alley, robed and assaulted her, and then dragged her into the garage. In short, the Government's theory throughout, supported by the consistent testimony of several witnesses (including one defendant and two others who claimed to have participated in the assault) was that Fuller was attacked by a large group. At trial, none of the defendants challenged that theory, instead employing a "not me, maybe them" defense. A jury convicted all seven petitioners, but acquitted two other codefendants.

Years later, petitioners discovered that the Government possessed certain evidence that it withheld from the defense at the time of trial. Most saliently, the Government refused to identify two individuals whom a witness had seen running away from the garage soon after the murder. As it turns out, one of those men was a violent fellow named James McMillan, who lived in a house that opens up onto the alley and who, in the weeks following Fuller's murder (but before petitioners' trial) was arrested for beating and robbing two other women in the same neighborhood. What's more, seven years after petitioners' trial, McMillan had robbed, sodomized, and murdered a young woman in an alley. In addition, the Government failed to disclose witness statements suggesting that one or two perpetrators, and not a large group, carried out the attack and failed to disclose evidence tending to impeach certain of its witnesses and cast doubt on the thoroughness of its investigation.

Petitioners brought a postconviction claim under Brady v. Maryland (1963), which held that the government violates the Due Process Clause "if it withholds evidence that is favorable to the defense and is material to the defendant's guilt or punishment." After a 16-day evidentiary hearing, the D.C. Superior Court rejected the Brady claims, finding that none of the undisclosed information was material. The D.C. Court of Appeals affirmed. Petitioners Turner and Overton then filed two cert petitions raising somewhat nuanced questions—Overton asked whether the Court of Appeals erred by holding that the suppressed evidence must have had the capacity to cause the jury to doubt "virtually everything" in order to be material; Turner asked whether courts may consider information that arises after trial in determining the materiality of suppressed evidence—but the Court granted cert on the simple question whether the convictions must be set aside under Brady, leading some observers to believe the Court had granted to reverse.

Not so. In a 6-2 decision (with Gorsuch riding the pine), the Court upheld the convictions, concluding, like the lower courts, that none of the undisclosed evidence was material under Brady. Writing for the majority, Justice Breyer began with some common ground. Everyone (the Government included) agreed that the undisclosed evidence was favorable to the defendants and should have been disclosed, but was "suppressed" (whether willfully or inadvertently). Breyer made a point of pinning down the Government's concession that, as a general matter, prosecutors should adopt a "generous policy of discovery." But, like the Government, the majority did not believe that the undisclosed evidence—if turned over—would have made a difference in the case. "Considering the withheld evidence in the context of the entire record, . . . we conclude that it is too little, too weak, or too distant from the main evidentiary points to meet Brady's standards." There was simply too much evidence of a group attack for evidence of an alternate single killer theory to have changed any jurors' minds. The group attack theory, Breyer noted, was "the very cornerstone of the Government's case" and was supported by generally consistent testimony from multiple witnesses, including one of the defendants and two others who participated in the attack. And the undisclosed impeachment evidence was largely cumulative of impeachment evidence that the defendants already had, and used, at trial. Accordingly, based on a fact-intensive review of the record, the majority concluded that the convictions should stand.

Justice Kagan, joined by Justice Ginsburg, dissented. In Kagan's view, the majority put way too much stock in the fact that the large-group narrative was central to the Government's case and unchallenged by the defense. But that's precisely because the Government failed to disclose evidence that would have led the defendants to challenge this narrative. Left in the dark, the defendants adopted a "not me, maybe them" approach, resulting in "something of a circular firing squad" where each defendant effectively assisted in the prosecution of the others. "Credible alternative-perpetrator evidence would have allowed the defendants to escape this cycle of mutually assured destruction" by uniting around a challenge to the Government's theory, which, Kagan maintained, was not as airtight as the majority would have us believe.

That does it for this crim-law saturated edition of the Update. But we'll be back before you know it. The Court has announced another opinion day tomorrow (probably "today," by the time you read this) and with nine cases remaining, we're likely to have two more D-Days next week.