Greetings, Court Fans!
We still owe you two opinions from last week, but in the meantime the Court issued three more opinions today, including the first opinion by Justice Alito and another opinion in favor of everyone’s favorite widow, Anna Nicole Smith. Here’s the first of a two-part wrap-up of the outstanding opinions.
To start off, Justice Alito issued his first opinion today in Holmes v. South Carolina (04-1327), in which the Court unanimously struck down a South Carolina rule of evidence that, in a criminal case where the prosecution’s evidence was “strong,” barred evidence that a person other than the defendant committed the crime. Bobby Lee Holmes (why it always Lee or Wayne?) was convicted of the rape and murder of an 86-year-old woman. Holmes claimed he had been framed and put on experts who criticized the state’s forensic evidence. He also claimed that another man, Jimmy White, had committed the crime; although White denied it at a pretrial hearing, Holmes had witnesses who heard White admit to the crime and could refute White’s alibi. The trial court excluded the evidence based on a rule that allowed evidence of third-party guilt if it raised a reasonable inference as to the defendant’s innocence, but excluded it if it merely cast a “bare suspicion” on another. The South Carolina Supreme Court affirmed, holding that where there is strong evidence – especially forensic evidence – of the defendant’s guilt, evidence of third-party guilt does not raise an inference as to the defendant’s innocence. The Court reversed; in a straightforward and concise opinion, Justice Alito noted that the case did not concern standard rules governing evidence of third-party guilt, which generally bar evidence that is speculative or not probative of anything pertaining to the defendant. South Carolina’s rule was different, however, because the state courts wrongly had shifted the focus from the probative value of the proffered evidence to the strength of the prosecution’s case – if the case against the defendant is strong, the third-party guilt evidence is excluded even if, viewed independently, it would be highly probative. That court also ignored Holmes’ challenges to the forensic evidence – and since the prosecution’s case was not conceded, any assessment of its strength would be a factual determination for a jury, not a trial court assessing of the independent probative value of defense evidence. As a result, the South Carolina rule as construed below was “arbitrary” and violated Holmes’ right to present a complete defense.
One of the decisions from last week was Jones v. Flowers (04-1477), a case (from Arkansas, no less) whose name conjured visions of a saucy match-up between two acquaintances of a recent President. Sadly, all we got was a holding that when a notice of a tax foreclosure is returned unclaimed, a state must take additional reasonable steps to provide notice before selling the property, if it is practical to do so. Here are the details: After Jones separated from his wife, he moved out of their Arkansas house and the couple’s property taxes went unpaid. The state mailed a delinquency notice to Jones at the house, but nobody was home to sign for it and it was returned to the state unclaimed. Two years later, the state published a notice in the newspaper and sold the property to Flowers. Jones learned of the sale and sued, claiming that the sale violated his due process rights. The Arkansas courts found for Flowers, but in a fairly lengthy opinion by the Chief, the Court reversed 5-3. The key point is this: While due process requires only that notice be reasonably calculated to reach the recipient, when the state actually becomes aware that its effort has failed, not following up would be unreasonable. Although the Court declined to prescribe exactly what a state must do, it noted that here the state could have sent the notice by regular mail, so it could be left at the house, or posted notice on the door (in fact, Jones learned of the sale after the fact in this just way, when an occupant – his daughter – was served with an unlawful detainer notice). Justice Thomas dissented, joined by Scalia and Kennedy, on the ground that the reasonableness of notice is supposed to be calculated ex ante, not ex post. Also, under the Court’s new rule, any time a doubt is raised, a state will have to consider additional steps, a process that may have no end point short of ensuring actual notice – which the law never has required. Finally, the dissent found the Court’s suggested alternatives no more reasonably calculated to reach Jones than what the state actually did.
Wrapping up last week’s decisions was Hartman v. Moore (04-1495), where the Court held (5-2, Alito and the Chief did not participate) that a plaintiff must plead and prove the absence of probable cause for the underlying prosecution in order to succeed on a claim for retaliatory prosecution. William Moore was the CEO of a company, REI, that manufactured multiline optical scanners – the handy devices that allow the Post Office to sort mail without requiring a 9-digit zip code. He vigorously lobbied Congress to support the use of multiline technology manufactured in the US (presumably by REI), rather than using single line scanners (which mainly were manufactured abroad). He succeeded, but did not win the resulting $250M-$400M bid – which went to a competitor. Moore’s woes didn’t end there: Postal inspectors looked into whether Moore was involved in paying kickbacks and whether REI was improperly involved in the search for a new Postmaster General. Moore ultimately was indicted, but when the government closed its affirmative case after six weeks, the district court acquitted Moore, finding a “complete lack of direct evidence” connecting him to any criminal wrongdoing. Moore then filed a Bivens action against six postal inspectors and the prosecutor (who got out based on prosecutorial immunity). After substantial litigation and two trips to the DC Circuit, Moore’s claims for retaliatory prosecution based on his First-Amendment-protected lobbying activities remained, and the District Court denied the inspectors’ claims of qualified immunity based on the existence of probable cause for the underlying prosecution; the DC Circuit affirmed. Reversing, the Court, led by Justice Souter, explained that the absence of probable cause is a critical causation issue in any retaliatory prosecution case because, unlike most retaliation cases, retaliatory prosecution requires that the improper motive of one government actor (here the inspectors) be the “but for” cause of action taken by another government actor (the prosecutor – who could not himself be held liable for his decision to prosecute). Probable cause will almost always be a critical factor in determining whether such causation exists, particularly since there is a strong presumption of regularity in the exercise or prosecutorial discretion. While the majority could imagine a situation in which a prosecutor baldly states that the only reason he pursued a case was pressure brought by another government actor, this case will be so rare (indeed the Court described it as akin to winning the lottery) that it should not drive the legal standard developed by the Court. In the end, the Court’s reasoning was pragmatic: “Because showing an absence of probable cause will have high probative force, and can be made mandatory with little or no added cost, it makes sense to require such a showing as an element of a plaintiff’s case . . . .” Ginsburg and Breyer dissented: Just because a smoking gun is rare doesn’t mean the courts should have to disregard it merely because there is a “barely sufficient” showing of probable cause. Where there’s smoke, there may well be fire.
The Court also issued an order list today that granted cert in one new case, Ornaski v. Belmontes (05-493), in which it will consider two questions concerning California’s “catch-all” mitigation instruction in capital cases, the so-called “unadorned factor (k),” which directs juries to consider “any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” The questions are: (1) Does [Boyde v. California, 494 U.S. 370 (1990)] confirm the constitutional sufficiency of California’s “unadorned factor (k)” instruction where a defendant presents mitigating evidence of his background and character which relates to, or has a bearing on, his future prospects as a life prisoner? (2) Does the Ninth Circuit’s holding, that California’s “unadorned factor (k)” instruction is constitutionally inadequate to inform jurors they may consider “forward-looking” mitigation evidence, constitute a “new rule” under Teague v. Lane, 489 U.S. 288 (1989)?
We’ll get you the rest of the outstanding opinions shortly. Until then, thanks for reading!
Ken & Kim
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400