Torres v. Mullin (03-5781) and Concrete Works of Colorado v. City and County of Denver (02-1673)

November 17, 2003 Supreme Court Update

Greetings Court fans!

Nothing of interest on the order list today, but three separate dissents from denials of cert. The first two dissents are in Torres v. Mullin (03-5781). In July 1993, Oklahoma arrested Torres, a Mexican national, and charged him with murder. In direct violation of Torres' rights under the Vienna Convention on Consular Relations, Oklahoma failed to tell Torres that he could have his consul informed of his arrest and failed to notify the Mexican consular officials of his arrest. Torres was eventually convicted and sentenced to death. After exhausting his state remedies, Torres filed a federal habeas petition arguing (among other things) that Oklahoma had violated his Vienna Convention rights. The lower courts rejected this argument noting that he had procedurally defaulted the claim (by failing to raise it in state court) and that he had not shown that the Convention violation prejudiced him in any way. The Supreme Court denied his cert petition, but Breyer and Stevens each penned separate dissents from that denial. Breyer noted that the lower court decisions conflict with an interpretation of the Convention by the International Court of Justice and that that court was currently considering a case brought by Mexico in which it claimed that Torres' conviction and sentence were unlawful. Breyer reviewed the ICJ decision and suggested that Torres (supported by an amicus brief from Mexico) raised substantial arguments. He would defer consideration of Torres' petition until the ICJ rules on Mexico's case. Stevens dissented because he disagreed with the rulings below on the merits. He thinks that the procedural default rules should not apply to Vienna Convention claims.

In a separate case, Concrete Works of Colorado v. City and County of Denver (02-1673), Scalia (joined by the Chief) dissented from the denial of cert in an affirmative action case. As suggested by the case name, this is a contracting case; at issue is the legality of Denver's program that gives preferences in public contracts to minority- and women-owned businesses. The 10th Circuit upheld the program, but Scalia thinks that court applied the wrong standard. As you might guess, Scalia thinks the court was far too lenient. He explains the failings of the 10th Circuit's analysis, notes that the appellate courts are split on the proper standard of review in affirmative action cases, and finally suggests that cert is necessary to correct the impression that last Term's U. Michigan affirmative action cases adopted a lower standard for affirmative action cases. Just guessing, but this last reason probably wasn't all that compelling as a reason to grant cert to other members of the Court; hard to believe they would really want to revisit the affirmative action decisions.

Finally, to all the Dept. of Justice subscribers on this list: As you know, I've been having problems sending emails to Dept. of Justice email addresses. Sometimes the emails go through, and sometimes they don't. I can't seem to identify a pattern for this delivery problem. (Maybe I made someone mad when I was at the Department? Do you think they're still mad I complained about the table in the women's restroom?) Assuming you get this message, please accept my apologies for the inconsistent service this Term. If anyone can explain why DOJ blocks some of my emails -- or explain how to avoid this block -- I'd appreciate any help. In any event, sorry for the delivery problems; I'll keep trying!

That's all for today. The Court will be in recess until December 1, so until then, thanks for reading! Happy Thanksgiving!

Sandy

From the Appellate Practice Group at Wiggin & Dana.
For more information, contact Sandy Glover, Aaron Bayer, or Jeff Babbin
at 203-498-4400, or visit our website at
www.wiggin.com.