The United States Supreme Court, in the case of Harrington v. Richter, decided, January 19, 2011, held that a trial counsel was not ineffective under the federal habeas corpus statute, called the Antiterrorism and Effective Death Penalty Act of 1996, when his trial counsel did not pursue a defense involving forensic evidence. The opinion was written by Justice Kennedy with six judges joining in the opinion and Justice Ginsburg concurring in the judgment. The decision is notable for the extent to which the Court goes to narrow the scope of review under the federal habeas statute. The court stated that relief under the statute is only allowed when a state court decision is contrary to clearly established holding of federal law or it involves an unreasonable application of law. In addressing the claim, the court looked at whether the State court decision involved an unreasonable application of the United States Supreme Court decision on ineffective assistance of counsel, Strickland v. Washington, 466 U.S. 668 (1984).

The Court held that determining whether the State’s court’s decision was an unreasonable application of Strickland is different from determining whether counsel performance was ineffective had the case came before it on direct appeal. Accordingly, the court held that federal habeas relief is precluded as long as fair minded judges may disagree and further emphasized the difficulty for a defendant satisfying this standard by holding that when the standard is general, the more leeway courts have in reaching different outcomes.

The United States Supreme Court criticized the 9th Circuit Court of Appeals for reviewing the case as if it came before it on direct review rather than under the differential standard of the federal habeas statute. The court stressed that federal habeas relief is meant to be a difficult standard to satisfy. The Court underscored that the statute protects against extreme malfunctions in the criminal process and not against error that may result on appeal. The court justified this holding under the rationale that it preserves the sovereign power of the States to punish criminal offenders.

On January 12, 2011, the United States Supreme Court will hear oral arguments in the case of Kentucky v. King. This case addresses the issue of what test should courts apply when police conduct creates the exigent circumstances relied on as the exception to the warrant requirement. The briefs in the case can be found on the Scotus blog. Additionally, there is an excellent commentary of Orin Kerr. Click here to read the article of Orin Kerr. The United States Supreme Court is reviewing a decision of the Kentucky Supreme Court, which can be read by clicking on this link.

I will be attending the oral arguments in this case as I am being sworn in as an attorney to practice before the United States Supreme Court. As a Massachusetts criminal attorney, it will be a great honor to be in attendance for such an important oral argument that impacts criminal law. I will posted my impressions of the argument on this blog.

In the King case, an undercover police officer bought drugs from a suspect in an apartment hallway. The suspect went into an apartment; however, there were two apartments and the officers did not know which one the suspect entered. The facts of the case indicate there were two apartments one on the left and the other the right of the hallway. From the left apartment, the police smelled marijuana, knocked on the door of the left apartment, announced their presence and entered the apartment without a warrant. While waiting outside, the police heard movement in the apartment and believe that evidence was being destroyed and as a result the police enter the apartment and seize narcotics.

The United States Supreme Court will hear oral argument in the Sixth Amendment Confrontation Clause case of Michigan v. Bryant on October 5th. In Bryant, a case from Michigan, the victim of a crime was injured from a gunshot wound and gave a description of the shooter to police. The victim died from the gunshot wound. The State admitted into evidence at trial the victim’s statements to the police. The defendant was convicted and appealed to the Michigan Supreme Court which held that the defendant’s right of confrontation was violated. The State appealed to the United States Supreme Court, which granted certiorari on March 1, 2010, 130 S.Ct. 2138 (2010).

The Bryant case raises the issue of whether statements to police by a witness experiencing a medical emergency are nontestimonial when made for the primary purpose of allowing the police to respond to an ongoing emergency when the perpetrator of the crime is still at large. The Court’s resolution of Bryant will rely heavily on how the court interprets its prior decision of Davis v. Washington, 547 U.S. 813 (2006) which defined when a statement is testimonial under the Sixth Amendment.

In Davis, the United States Supreme Court held that statement made by a victim who called 911 to report that she was being subject to domestic violence were nontestimonial. The Court held that the victim’s statements to the 911 operator were nontestimonial because the victim was speaking of events as they were actually happening and the statements were made as the victim faced an ongoing emergency and were made for the purpose of allowing the police to respond to the emergency.

The United States Supreme Court further limited the holding of its landmark case of Miranda v. Arizona in the case of Berghuis v. Thompkins decided on June 2nd.

In Miranda v. Arizona, the United States Supreme Court held that police must advise a defendant of the defendant’s right to remain silent, right to attorney and the fact that statements could be used against the defendant prior to any custodial interrogation. In Thompkins’ case, the police began to interrogate the defendant about a shooting. The Michigan police read the defendant his Miranda rights from a preprinted form. Most police departments in Massachusetts also use preprinted forms to advise a defendant of their rights. The defendant refused to sign the form and was asked to read one of the rights by the police officer. During the interrogation, the defendant was silent throughout most of the 2 hour and 45 minute interrogation. The defendant was asked by the officer if he prayed for the victim and asked for God’s forgiveness for shooting that boy down. The defendant replied that he did. His confession was used against him at his trial, resulting in his conviction on the charges.

The defendant argued that his silence during most of the interrogation acted as an invocation of his right to remain silent and that the police should have stopped questioning him when he did not respond. The Supreme Court rejected this reasoning holding that a defendant must unequivocally invoke his right to remain silent.

The defendant next attacked the waiver of his right to remain silent by arguing that waiver of his rights under Miranda was not knowing, intelligent and voluntary. The majority opinion written by Justice Kennedy indicating that Miranda should not be interpreted to hold that a waiver of Miranda is difficult to establish absent a written or formal waiver. The Court held that there is no formalistic process that the State has to demonstrate to prove that a defendant waived Miranda rights other than that the accused made an uncoerced statement and understood his rights.

The Court found that Thompkins waived his rights under Miranda and understood those rights. Significantly, the court held that the fact that almost three hours passed from the time of the Miranda warnings to the incriminating statement did not mean that the statement should be suppressed. Further, the court held that the fact that the police appealed to religion did not make the confession coerced as the court held that the Fifth Amendment is not concerned with moral and psychological pressures to confess emanating from sources other than official coercion.
In a dissenting opinion, written by new Supreme Court Justice Sotomayor and joined by Justices Stevens, Ginsburg and Breyer, the dissent argues that the court’s decision represents a substantial retreat from the Constitutional protections recognized in Miranda.

The dissent argued that the State did not satisfy the heavy burden of showing that the defendant waived his right to remain silent. Additionally, the dissent would hold that a defendant that continuously remains silent invokes their Fifth Amendment rights and their actions cannot be interpreted in any way other than indicating a refusal to speak to the police.
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