CHIEF JUSTICE ROBERTS: We’ll hear argument this morning in Case 11-9307, Henderson v. United States.

ORAL ARGUMENT OF PATRICIA A. GILLEY

Mr. Chief Justice, and may it please the Court: There are
three primary points I would like to focus on this morning during my argument.
First, the question presented by Mr. Henderson involves a very small subset of
cases which are — which come before the Court under Rule 55 — 52(b) each
year. These are the cases that were referred to as the special case in the
Olano decision. They have errors which, at the time of trial, were unsettled or
unclear; but, by the time they made it to the appellate court, they had become
clear by a clarifying rule or a decision.

Second -­

JUSTICE SCALIA: What — what about the time they come up
here? 52(b) applies to every court, does it not?

The Full argument can be found at:

http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-9307.pdf.

It is an interesting read but what you will not find is Ms. Gilley able to state what her two other primary points were at least in that language.

Approximately three fourths of 201 ABA-approved law schools experienced declines in first-year enrollment. Ninety law schools reported declines  exceeding 10 percent from last year, while fewer than 10 had increases of 10 percent or more.

– Information on law school enrollment reported in a recent American Bar
Association press release.

– Will It Be Harder To Fill Judicial Vacancies In the Future Because of the Lack of Lawyers? (Not likely)

Circuit Spilt recently reported that the Fourth Circuit joined a majority of its sister
circuits in holding that a convicted co-defendant’s exculpatory testimony given after their invocation of the Fifth Amendment does not constitute “newly discovered evidence” under Federal Rule of Criminal Procedure 33. Griffin v. United States, No. 11-7466 (4th Cir. July 24, 2012) (per curiam) (unpublished).

Other circuits have reached the same conclusion. See, e.g., United States v. Owen, 500 F.3d 83, 89 (2d Cir. 2007); United States v. Jasin, 280 F.3d 355, 367-68 (3d Cir. 2002); United States v. Freeman, 77 F.3d 812, 817 (5th Cir. 1996); United States v. Theodosopoulos, 48 F.3d 1438, 1448-49 (7th Cir. 1995); United States v. Glover, 21 F.3d 133, 138 (6th Cir. 1994); United States v. Muldrow, 19 F.3d 1332, 1339 (10th Cir.
1994); United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir. 1992); United States v. DiBernardo, 880 F.2d 1216, 1224-25 (11th Cir. 1989).

Last month the petitioner in Griffin filed a cert. petition with the Supreme Court challenging the Fourth Circuit’s interpretation of Rule 33, which acknowledged that “[i]t is rare to find a circuit split as fully developed, or as lopsided, as this case presents. Ten circuits have adopted the Government’s interpretation of Rule 33(b)(1).¹ Only the First Circuit applies Griffin’s interpretation.²”

¹ United States v. Taylor, 600 F.3d 863, 869 (7th Cir. 2010); United States v. Owen, 500 F.3d 83, 88 (2d Cir. 2007); United States v. Jasin, 280 F.3d 355, 365 (3d Cir.
2002); United States v. Glover, 21 F.3d 133, 138 (6th Cir. 1994); United States v. Muldrow, 19 F.3d 1332, 1339 (10th Cir. 1994); United States v. Dale, 991 F.[2]d 819, 839 (D.C. Cir. 1993); United States v. Rogers, 982 F.2d 1241, 1245 (8th Cir. 1993); United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir. 1992); United States v. DiBernardo, 880 F.2d 1216, 1224–25 (11th Cir. 1989); United States v. Metz, 652 F.2d 478, 480 (5th Cir. 1981).

² United States v. Montilla-Rivera, 115 F.3d 1060, 1066 (1st Cir. 1997).

Notwithstanding the fact that this split is lopsided in favor of the Fourth Circuit’s interpretation of the Rule, the petitioner contends that “[t]he First Circuit’s skeptical approach preserves a district court’s discretion while better comporting with the text of Rule 33(b)(1).”

You can read the Fourth Circuit’s opinion here: Griffin v. United States, No. 11-7466 (4th Cir. July 24, 2012) (per curiam) (unpublished) and the petition for certiorari here: Griffin Petition for Certiorari, Griffin v. United States, No. 12-485 (U.S. Oct. 16, 2012).

It is not to say that a judicial performance evaluation is an expensive waste of time. No one can honestly claim that, but if the results in Utah are a prototype, the evaluations may not make a significant difference in voters’ selection when it comes to retention elections. Utah has among the nation’s best judicial performance evaluation programs thanks in part to a dedicated commission and a very hard working director, Joanne Slotnik.  The Salt Lake Tribune recently reported,

The 13 members of the Judicial Performance Evaluation Commission spent the four years leading up to this month’s election compiling the most information Utah voters have ever had on judges facing retention.

In the end, however, it appeared to matter little.

Each of the 26 judges on the ballot was retained with about 80 percent of the vote. And every judge who faced election six years ago came within 2 percentage points of the 2006 tally.

“There was two times the [voter] turnout and yet the same margins held across the board,” Utah Court Administrator Daniel Becker told members of the Utah Judicial
Council this week. “After all the expense and all the wailing and gnashing of teeth, the results were about the same.” Joanne Slotnik, executive director of the evaluation commission (JPEC), said she knows why. “The bottom line is not a whole lot of people saw the information we worked so hard to put out,” Slotnik said.

For the entire article see: http://www.sltrib.com/sltrib/news/55318447-78/judges-information-utah-pamphlet.html.csp

The Defending Childhood Task Force presented its recommendations on preventing and reducing children’s exposure to violence to Attorney General Eric Holder at the
December 12 quarterly meeting of the Federal Coordinating Council on Juvenile Justice. The task force was commissioned last year by Attorney General Holder as part of his Defending Childhood Initiative. NCCD provided technical assistance to the task force.

Co-chairs Joe Torre and Bob Listenbee, along with other task force members, presented and discussed the recommendations with Attorney General Holder and other members of the Council. The report of the task force contains a full complement of recommendations for practitioners, policymakers, and community members, and
emphasizes that each of us has a role to play in protecting children from exposure to violence.

Peeking Behind the Plea Bargaining Process is the title of this new paper by Laurie Levenson now available via SSRN.  Here is the abstract:

The Supreme Court’s rulings in Missouri v. Frye and Lafler v. Cooper, which recognized a defendant’s Sixth Amendment right to effective assistance of counsel in plea  bargaining, creates new responsibilities for judges, defense counsel and prosecutors.  This article explores what those responsibilities are in light of the history and role of plea bargaining in the United States. 

Professor Levenson is one of the nation’s best known law professors. This paper is an interesting read.

The first of several Access Briefs from our Center on Court Access to Justice for All (www.ncsc.org/atj) is now available. The Brief describes a range of self-help services courts can provide to help self-represented litigants with their cases. It is available at http://cdm16501.contentdm.oclc.org/utils/getfile/collection/accessfair/id/263/filename/264.pdf.

Professor Stephanos Bibas has a provocative commentary in the current edition of the Harvard Law Review Entitled, INCOMPETENT PLEA BARGAINING AND EXTRAJUDICIAL REFORMS.  The article begins,

For many years, plea bargaining has been a gray market. Courts are rarely involved, leaving prosecutors unconstrained by judges or juries.1 Prosecutors’ plea offers largely set sentences, checked only by defense lawyers. In this laissez-faire bargaining system, defense lawyers, not judges or juries, are the primary guarantors of fair bargains and equal treatment for their clients. But the quality of defense lawyering varies widely. Bargaining can be a shadowy process, influenced not only by the strength of the evidence and the seriousness of the crime but also by irrelevant factors such as counsel’s competence, compensation, and zeal.3 And because bargaining takes place off the record and is conveyed to clients in confidence, it is not easy to verify that defense counsel have represented their clients zealously and effectively. Nevertheless, criminal procedure has long focused on jury trials. Even though guilty pleas resolve roughly ninety-five percent of adjudicated criminal cases, the Supreme Court has usually treated plea bargaining as an afterthought, doing little to regulate it. When it has regulated pleas, the Court has largely focused on the procedures for waiving trial rights, not the substantive pros and cons of striking a deal. This past Term, the Court for the first time addressed how the Sixth Amendment’s guarantee of effective assistance of counsel applies to defendants who reject bargains and receive heavier sentences after fair trials. In Lafler v. Cooper7 and Missouri v. Frye, a five-to-four majority of the Court held that ineffectiveness that leads defendants to reject plea bargains can satisfy both the performance and prejudice prongs of Strickland v. Washington. Incompetent lawyering that causes a defendant to reject a plea offer can constitute deficient performance, and the resulting loss of a favorable plea bargain can constitute cognizable prejudice, under the Sixth Amendment.

The full article can be found at http://www.harvardlawreview.org/media/pdf/vol126_bibas.pdf

Lamar Evans was acquitted of burning down a vacant house after his trial judge mistakenly required Michigan prosecutors to prove more than they needed to, all sides now in the case agree.

The U.S. Supreme Court considered whether Evans can now be tried again. “A decision, expected by the end of June, could punch a hole in the U.S. Constitution’s general prohibition against being tried twice for the same crime, known as double jeopardy. Justices appeared torn over how to balance the protection under that rule against potentially setting guilty defendants free by depriving the government of its right to prosecute. The SCOTUS blog in its argument recap reported,  “the central question appeared to be whether Michigan – and the United States, appearing as an amicus in support of the state –would be able to convince the Justices that a workable distinction could be drawn between two kinds of cases:  (1) those in which defendants are acquitted at the close of the prosecution’s case-in-chief based upon the trial judge’s erroneous evidentiary rulings with regard to a required element of the underlying offense; and (2) cases such as this one, in which the trial judge erroneously added an element to the underlying offense, and then entered a directed judgment of acquittal when the prosecution failed to introduce sufficient evidence to prove the wrongly required element beyond a reasonable doubt. The Court has consistently held that the Double Jeopardy Clause of the Fifth Amendment bars retrial in the former context; the Michigan Supreme Court held in Evans that no jeopardy attaches to the “acquittal” in the latter. But if the argument is any indication, the apparent difficulties of administering a constitutional rule that turns on such an elusive – if not illusory – distinction (one which Justice Breyer suggested would yield a “terrible mess”) may well leave the Justices with a far starker and more consequential choice: Allow a small number of criminal defendants to reap windfalls from erroneous rulings that they themselves may have precipitated, or revisit the core principle underlying thirty-five years of double jeopardy jurisprudence.”

Professor Frase guest-blogging on “Just Sentencing”

Sentencing Law & Policy announces Professor Frase’s series of posts “to discuss sentencing issues raised by his terrific new book titled “Just Sentencing: Principles and Procedures for a Workable System,” which was just published by Oxford University Press and is available here.”