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Case Update - SCOTUS edition

Next week, the United States Supreme Court is going to make a ruling or two - in the same-sex marriage and Obamacare cases - which will change the course of American history, because that's what the Supreme Court does from time to time.  The decisions announced last week did not go quite that far, but one of them, Ohio v. Clark, might have changed the course of the Confrontation Clause jurisprudence articulated just a decade ago in Crawford v. WashingtonClark overruled the Ohio Supreme Court's decision that a child's statements to teachers about being sexually abused had to be excluded because the teachers' role as "mandatory reporters" made them government agents for Crawford purposes, rendering the child's statements testimonial.  We'll cover that later this week.

In another criminal decision of some note, Brumfield v. Cain, the Court held that Brumfield, who'd been sentenced to die for killing a police officer, was entitled to a new hearing on whether he was sufficiently mentally disabled to avoid execution.  Most noteworthy about the 5-4 decision was Thomas' dissent, in which he recited the facts of the murder, and went on to describe the murdered officer's sons efforts to keep the family together, and his later exploits on the football field as a star in college and the pros.  The other three (Roberts, Scalia, and Alito) didn't join that part of the opinion, Alito writing a short concurrence with the Chief Justice noting that that portion of Thomas' opinion was "inspiring" but not "essential to the legal analysis in this case."

Davis v. Ayala demonstrates the hurdle that habeas corpus petitioners must overcome.  Ayala's lawyer at trial raised a Batson challenge to the exclusion of black jurors, so the judge held a hearing on it - without Ayala or his lawyer being present.  The California courts had found the exclusion to be error, but a harmless one, but the 9th Circuit disagreed and granted relief.  The Court, by a 5-4 vote, reversed, holding that when a state appellate court finds that an error was harmless, the federal courts in habeas review can overturn that holding only if they find that the harmless error determination, not the error itself, was "contrary to, or involved an unreasonable application of clearly established federal law."

It's not unusual for justices on opposite sides to make acerbic comments about each other's views - Scalia has elevated that to an art form - but in Ayala we have sparring between two justices in the majority.  Ayala had been convicted of killing several people, and had been kept in solitary confinement in prison.  There's a wealth of recent research indicating the mental effects of being kept in solitary for extended periods of time, and Kennedy used his concurring opinion to raised concerns about the increased use of that punishment.  Thomas, in a one-paragraph opinion, responded tartly that "the accommodations in which Ayala is housed are a far sight more spacious than those in which his victims . . . now rest," and that "Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth."

First there was the demon weed, then the crack cocaine epidemic, now heroin use is on the rise again, and... bath salts?  The question in McFadden v. US was the mens rea requirement for violation of the federal narcotics statute.  A federal statute defines numerous controlled substances, but in an effort to keep up with the intersection of chemistry and ingenuity in creating substances will produce a high, Congress passed the "analogue" statute, which prohibits substances which are "substantially similar" in chemical structure to one of the banned drugs.

The federal drug statute prohibits from knowingly possessing a controlled substance.  The McFadden Court, in a unanimous decision authored by Thomas - and he had a busy week, didn't he? - held that the "knowing" element in the federal drug statute went to both the verb and the noun; in other words, the government had to prove that the defendant knew that the substance was prohibited, either because it was expressly defined as a controlled substance, or because he knew that the substance was a prohibited analogue.  How to do that?  I've read the opinion twice, and I'm still trying to figure that out.  It gives two examples:  a defendant can be convicted if it's shown that he "knew that the substance with which he was dealing is some controlled substance - that is, one ... treated as such by the Analogue Act."  Being told that "bath salts are illegal analogues" might be sufficient.  Second, "that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue."  Under this scenario, a defendant could be convicted if he knew that the substance had a "substantially similar" chemical structure to a banned substance, even if he didn't know that the Analogue Statute made it illegal to possess.

Clear enough?

Finally, while Thomas authored two opinions and concurred or dissented in several others, it was a decision where he wrote nary a word in which he spoke loudest:  he joined with the liberal bloc - certainly a harbinger of the potential Apocalypse - in Walker v. Texas Division, Sons of Confederate Veterans, a 5-4 decision holding that Texas could reject a proposed design for a specialty license plate that included a Confederate battle flag. 

The decision was probably a fortunate one, given the horrifying events in Charleston just a few days later.  I'm a Civil War buff, and I have great respect for those who served for the South, but I agree with one historian's comment that no soldiers ever fought more nobly for a worse cause.  The flag represents that cause for too many people.  It belongs in a museum, not on a license plate or flying above a state building. 


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