Supreme Court Update: McFadden v. United States (14-378), Ohio v. Clark (13-1352), Brumfield v. Cain (13-1433) and Davis v. Ayala (13-1428)

June 22, 2015 Supreme Court Update

Greetings, Court Fans!

We're back with Part II of our last-Thursday round-up, just in time for another decision dump from One First Street. This morning, the Court handed down decisions in Los Angeles v. Patel (13-1175), Kimble v. Marvel Enterprises (13-720), Horne v. Dep't of Agriculture (14-275), and Kingsley v. Hendrickson (14-6368). We'll get summaries of those to you just as soon as we can. In the meantime, we bring you the penal element from last Thursday: two more-or-less unanimous criminal decisions and two sharply divided habeas decisions.

First up, in McFadden v. United States (14-378), the Court unanimously settled a long-standing dispute regarding the mens rea required for possession of so-called "controlled substance analogues." These are substances that are not listed on the federal drug schedules, but are chemically similar to drugs that are. Under the Controlled Substance Analogue Enforcement Act of 1986 (the "Analogue Act"), courts are instructed to treat these analogues as Schedule I controlled substances if they are intended for human consumption. The Controlled Substances Act (the "CSA"), in turn, makes it "unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." The question in McFadden was how that "knowing or intentionally" mens rea plays out when the "controlled substance" in question is an analogue.

Stephen McFadden was arrested in 2011 for peddling "bath salts," of neither saline nor balneal in variety. In this instance, "bath salts" refers to "various recreational drugs used to produce effects similar to those of cocaine, methamphetamine, and other controlled substances." Notwithstanding that McFadden had carefully marketed his products with labels asserting the contents were "not for human consumption" and did "not contain any of the following compounds or analogues to the following compounds," the Feds tested them and found that they were chemically similar to Schedule I drugs. McFadden was therefore indicted and, at trial, requested an instruction requiring the Government to prove that he "knew that the substances that he was distributing possessed the characteristics of controlled substance analogues." The Government, in turn, argued that it should only have to prove "that [he] knowingly and intentionally distributed a mixture or substance . . . [t]hat . . . was a controlled substance analogue . . . with the intent that it be consumed by humans." The District Court compromised, instructing that the statute required that "the defendant knowingly and intentionally distributed a mixture or substance that has" substantially similar effects on the nervous system as a controlled substance and "[t]hat the defendant intended the mixture or substance to be consumed by humans." The jury convicted and the Fourth Circuit affirmed, holding that the intent element of the Analogue Act requires only that the defendant meant for the substance at issue to be consumed by humans.

The Supreme Court reversed, 9-0. Writing for the Court, Justice Thomas noted that, under the most natural reading of the CSA, the word "knowingly" applies not just to the statute's verbs (manufacture, distribute, etc.) but also to the object of those verbs—"a controlled substance." Therefore, the knowledge requirement of § 841(a)(1) of the CSA simply requires that a defendant know that the substance he is dealing with is some unspecified substance listed on the federal drug schedules. The Analogue Act does not alter that provision; it merely instructs courts to treat controlled substance analogues "as controlled substance[s]." "Applying this statutory command, it follows that the Government must prove that a defendant knew that the substance with which he was dealing was ‘a controlled substance,' even in prosecutions involving an analogue." As Justice Thomas explained, this can be established in two ways. The Government can show either that the defendant knew that the substance in question is in fact a controlled substance analogue, or that the defendant knew the substance had the features of a controlled substance analogue—i.e., that it has a substantially similar chemical structure to a listed controlled substance, or a substantially similar effect on the central nervous system, or that it is represented or intended to have such an effect. Because the Fourth Circuit's test required only that the defendant know that the substance is intended for human consumption, without requiring proof that the defendant knew that the substance he was dealing with is a "controlled substance," McFadden's conviction was reversed. However, the Court instructed the Fourth Circuit on remand to consider whether the error in the jury instructions was harmless because no rational jury could have concluded that McFadden was unaware that the substances he was distributing were controlled.

The Chief Justice joined Thomas's opinion in part, but chimed in with a separate concurrence arguing that "a defendant needs to know more than the identity of the substance; he needs to know that the substance is controlled." For well-known drugs, like heroin, this is easily proved: if you know you're dealing in heroin, you know you're dealing in a substance that is controlled. But this isn't necessarily the case for lesser-known drugs, as the Chief demonstrated with a "pop quiz": "Two drugs—dextromethorphan and hydrocodone—are both used as cough suppressants. They are also both used as recreational drugs. Which one is a controlled substance?" Judging from the accompanying footnote, drug peddlers would be well advised to deal in dextromethorphan rather than hydrocodone, though it's not clear whether they can cite the Chief's concurrence in raising an advice-of-counsel defense.

In another 9-0 decision (albeit with two concurrences), the Court in Ohio v. Clark (13-1352) reinstated the criminal conviction of Darius Clark for child abuse, ruling that the admission of out-of-court statements by the abused child to his teacher were not testimonial in nature and therefore did not implicate the Sixth Amendment's Confrontation Clause. Darius Clark was surely an unsympathetic defendant; he was convicted of physically abusing a 3-year-old boy after sending the child's mother off to Washington, D.C. to engage in prostitution for him. The decision, however, focused on the context of the child's statements.

Under the Court's precedents, statements are not subject to the Confrontation Clause unless their "primary purpose" is testimonial—i.e., they are intended to establish facts for a possible future criminal prosecution. The Court had repeatedly reserved the question whether statements made to private citizens, rather than to law enforcement officers, are subject to the Confrontation Clause. Justice Alito, writing for the majority, declined to adopt a "categorical rule" for such statements, holding instead that in the circumstances of this case the child's statement could not be deemed testimonial. The child's statements to his teacher were made in the context of an "ongoing emergency," in which the primary purpose and immediate concern was to identify the abuser and "protect a vulnerable child from future attacks." The conversation was informal and spontaneous—nothing like a formal police interrogation—and there was no indication that its primary purpose was to gather evidence for a possible prosecution. The Court's conclusion was bolstered by the child's age ("statements by very young children will rarely, if ever, implicate the Confrontation Clause") and by the fact that the child was speaking with his teacher ("the relationship between a student and his teacher is very different from that between a citizen and the police"). Finally, the Court rejected Clark's principal argument—that Ohio's mandatory reporting requirement for teachers meant that the conversation about suspected child abuse had a law-enforcement purpose and rendered the child's statements testimonial. The Court held that, regardless of the teacher's reporting obligation, the pressing concern at the time the statements were elicited was to protect the child and not to build a criminal case.

Justice Scalia (a champion of the Confrontation Clause), concurred in the judgment and filed a separate opinion, joined by Justice Ginsburg. Although he agreed with the majority that the context (in particular the child's age) conclusively established that the child's statements were not testimonial in nature, Scalia wrote separately "to protest the Court's shoveling of fresh dirt upon the Sixth Amendment right of confrontation so recently rescued from the grave in Crawford v. Washington (2004)." Prior to Crawford (written by Justice Scalia, of course), the Court allowed hearsay statements to be admitted against a defendant if they "bore indicia of reliability." Crawford did away with that "flabby test," in favor of what came to be known as the primary-purpose test. In Scalia's view, while the majority applied the primary-purpose test here, Justice Alito had unnecessarily minimized it as "a different approach . . . as though Crawford is only a matter of twiddle-dum twiddle-dee preference, and the old pre-Crawford ‘approach' remains available." Scalia was quick to cast as dicta Alito's statements in the majority opinion tending to describe the primary-purpose test as just one standard, among others unnamed, for determining whether a statement is testimonial and therefore triggers the Confrontation Clause. "[T]he good news is that there are evidently not the votes to return to that halcyon era for prosecutors; and that dicta, even calculated dicta, are nothing but dicta."

Justice Thomas also concurred separately. He believed the Court should have taken the opportunity presented in this case to do away with the primary-purpose test and employ a uniform test (for statements made to private persons and to law enforcement) assessing whether statements "bear sufficient indicia of solemnity to qualify as testimonial." Unlike formalized affidavits, depositions, and similar testimony, the child's statements here could not possibly meet that standard, so Justice Thomas concurred in the judgment.

The façade of unanimity in the criminal decisions crumbled in Thursday's habeas decisions. First, in Brumfield v. Cain (13-1433), the Court addressed the appeal of Kevan Brumfield, an inmate on death row in Louisiana. Brumfield moved before a Louisiana state trial court for an evidentiary hearing on whether he was so intellectually disabled that his execution would qualify as cruel and unusual punishment under Atkins v. Virginia (2002), the landmark decision in which the Court held that execution of intellectually disabled persons violates the Eighth Amendment. The trial court found Brumfield presented no evidence that raised a "reasonable doubt"—the standard under Louisiana state law—about his intellectual disability. It therefore denied him a hearing. That decision was summarily affirmed by the Louisiana Supreme Court. Brumfield brought a habeas petition before the District Court, which found he was entitled to habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The Fifth Circuit reversed, but in a 5-4 decision, the Supreme Court reversed again, holding that Brumfield met the standard for habeas relief under AEDPA.

Justice Sotomayor began the majority opinion by noting that Brumfield was entitled to relief under the AEDPA if the state court's ruling was (1) contrary to or involved an unreasonable application of federal law, as determined by the Court or (2) based on an unreasonable determination of the facts. This case fell under the second prong. Even under the applicable deferential standard, the state court's determination that Brumfield had not raised a reasonable doubt as to his intellectual disability was unreasonable. First, the state court relied on the fact that Brumfield's IQ score was 75, or maybe higher. The Court squarely rejected any conclusion "that Brumfield's reported IQ score of 75 somehow demonstrated that he could not possess subaverage intelligence." Second, the state court had found that there was no evidence in the record that Brumfield had impaired "adaptive skills." The Court again held firmly otherwise. After a severely premature birth, Brumfield had faced numerous challenges in childhood, including placement in special education classes and several mental health facilities. He had also been put on antipsychotics and sedatives. Even as an adult, he read only at a fourth-grade level. According to the Court, "these facts were alone sufficient to raise a doubt as to Brumfield's adaptive impairments." The Court therefore remanded for further habeas proceedings.

Justice Thomas penned a vigorous dissent. "Given that the majority devotes a single sentence to a description of the crime for which a Louisiana jury sentenced Brumfield to death," Justice Thomas opened, "I begin there." The victim in the murder that resulted in Brumfield's death sentence was a police officer and single mother of six children who was working a second job at the time she was killed. Her eldest son had grown up to be the prominent football player Warrick Dunn, and Justice Thomas compared the trajectories of Dunn and Brumfield: Both men came from disadvantaged backgrounds, but one played in the NFL and went on to set up a number of charities in memory of his mother, while the other spent essentially his entire adult life committing a series of crimes that escalated into a robbery in which he shot a police officer seven times at close range while she was sitting in a car guarding a grocery-store manager making a bank deposit. Justice Thomas would have found that the trial court's ruling that Brumfield had not shown he was so intellectually disabled that his execution would violate the Eighth Amendment was not sufficiently erroneous to qualify for relief under AEDPA. Although Brumfield had also appealed on alternative grounds that the trial court's decision was contrary to established Supreme Court precedent, Justice Thomas would have found otherwise.

Justice Alito, joined by the Chief, concurred in the dissent's legal analysis, but did not join the portion of the opinion extolling the virtues of Warrick Dunn, relative to Kevan Brumfield: Dunn's story "is inspiring and will serve a very beneficial purpose if widely read," Alito wrote, "but I do not want to suggest that it is essential to the legal analysis in this case."

Finally, in Davis v. Ayala (13-1428), the Court's 5-4 split on the question of AEDPA deference to state-court harmless-error determinations was eclipsed by a pair of unusual concurring opinions. During jury selection in his triple-murder trial, Hector Ayala, who is Hispanic, objected to the prosecution's peremptory challenges under Batson v. Kentucky (1986), which held that peremptory challenges may not be used to exclude jurors because of their race. The trial court permitted the prosecution to disclose its reasons for striking the jurors outside the presence of Ayala and his counsel and concluded that the prosecution had valid, race-neutral reasons for the strikes. After he was convicted, Ayala appealed, claiming that his exclusion from the colloquy violated his rights under Batson. The California Supreme Court ruled that it was error, as a matter of state law, to exclude Ayala from the colloquy but held that the error was harmless under state law and, to the extent any federal error occurred, it too was harmless beyond reasonable doubt. Reviewing his subsequent habeas petition, the District Court concluded that the state court's finding of harmlessness was not contrary to or an unreasonable application of clearly established law under AEDPA. A divided panel of the Ninth Circuit reversed, however, holding both that the exclusion of Ayala from the Batson colloquy violated his federal Constitutional rights and that the error was not harmless.

The Court un-reversed, 5-4, holding that any federal constitutional error was harmless and that the Ninth Circuit had erred in failing to accord AEDPA deference to the state court's harmlessness determination. Writing for the majority, Justice Alito noted that, even assuming that it was constitutional error to exclude Ayala from the Batson colloquy, Ayala would only be entitled to habeas relief if the prosecution could not demonstrate harmlessness. The majority underscored that, in conducting habeas review, a federal court must defer not only to a state court's determination of the merits, but also to its determination of harmlessness. Accordingly, in this case, Ayala would only be entitled to habeas relief if the California Supreme Court's determination of harmlessness was contrary to, or an unreasonable application of clearly established federal law. The majority concluded that it was not, going through each of the challenged peremptory strikes and concluding, as had the state court, that the prosecution had proffered valid, race-neutral reasons for the strike. With respect to each, Alito stressed that the role of the federal court was merely to determine whether the state court's determination was reasonable, not to conduct a de novo review, as the Ninth Circuit had done.

Justice Sotomayor wrote for the dissenters (herself, Ginsburg, Breyer, and Kagan), arguing that the majority erred in taking the prosecution's purportedly race-neutral explanations at face value without appreciating that Ayala's attorneys might well have given the lie to the prosecution's explanations had they been permitted to hear them. Ayala's was not a typical Batson claim. He did not claim that the trial court wrongly rejected his challenges, but rather that it wrongly excluded him from the colloquy. Therefore, "Ayala's conviction must be vacated if there is grave doubt as to whether even just one of his Batson challenges would have been sustained had the defense been present." In this respect, "[t]here is no reason to believe that Batson hearings are the rare exception" to the rule that truth is best discovered by powerful statements on both sides of a question. Because Ayala's attorneys could have called into question the credibility of the prosecution's asserted race-neutral justifications, no one can be sure that the exclusion of Ayala and his counsel was harmless beyond a reasonable doubt.

Justice Sotomayor's dissent was impassioned, but the real fireworks erupted from the concurring opinions. Justice Kennedy joined Alito's majority opinion in full but wrote separately to address "one factual circumstance, mentioned at oral argument but with no direct bearing on the precise legal questions presented by this case." There followed an impassioned critique of solitary confinement—Ayala had spent the majority of his 25 years in prison in so-called "administrative segregation"—lamenting that "the conditions in which prisoners are kept simply has not been a matter of sufficient public inquiry or interest." Although Kennedy conceded that this case did not present an opportunity to address the constitutionality of solitary confinement, he concluded that "[i]n a case that presented the issue, the judiciary may be required . . . to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them."

Kennedy's concededly off-point concurrence sparked a harsh rejoinder from Justice Thomas, writing alone: "I write separately to point out, in response to the separate opinion of Justice Kennedy, that the accommodations in which Ayala is housed are a far sight more spacious than those in which his victims . . . now rest."

We expect the sharp words to continue as we make our way through the most controversial cases of the term. Stay with us!