UPDATED 11:30 a.m.

Another of the cases that the Supreme Court had agreed to decide during the current Term has now been settled and thus has been dismissed — the case of Huber v. Wal Mart Stores (07-480). The Court released a dismissal order Monday, separate from a series of orders based on actions at last Friday’s Conference.  The Huber case sought to test whether a disabled worker who is unable to carry out her present job is to be given a priority in assignment to a similar position she can perform, or must only be given a chance to compete for that job. The Eighth Circuit concluded that the Americans with Disabilities Act only requires an opportunity to compete for available positions. The Huber case was granted on Dec. 7 (with Justice Stephen G. Breyer, a Wal-Mart investor, not participating); it had been expected to be heard in March.

Among Monday’s orders, the Court asked the U.S. Solicitor General for the government’s view on whether workers may settle with their employers their claims under the Family and Medical Leave Act.  The issue arises in Progress Energy v. Taylor (07-539).  The Fourth Circuit Court, ruling in conflict with the Fifth Circuit Court, decided that a Labor Departmen regulation barred both past and future waiver of all FMLA rights.  The Labor Department has taken the position that its regulation permits backward-looking release of claims under that law.

The Court declined to hear a case testing whether terminally ill patients who have other treatment options have a constitutional right to access to experimental drugs not yet given final approval by the federal government — a claim rejected by the D.C. Circuit Court. The case is Abigail Alliance v. Von Eschenbach (07-444). Chief Justice John G. Roberts, Jr., took no part in the order on this case, apparently because, as a member the Circuit Court in March 2005, he was on a panel that denied the Food and Drug Administration’s motion to summarily uphold a District Court decision rejecting the Abigail Alliance bid for access to experimental drugs not yet available for general public use.

The Court also declined to hear three significant test cases on the scope of the Constitution’s Confrontation Clause, testing  that clause applies to evidence that is put before a jury or sentencing judge in sentencing.  The Court has long followed the view that admission of evidence at sentencing is more wide open than at trial.  The Eleventh Circuit Court followed that reasoning in refusing to extend the Sixth Amendment confrontation right to sentencing in Fields v. U.S. (07-6395), as did the Nevada Supreme Court in Johnson v. Nevada (06-10345) and Thomas v. Nevada (06-10347).  The Supreme Court had ruled in 1949 (Williams v. New York) that, at sentencing, judges may consider a wider range of evidence, perhaps including evidence that could not have been admitted at the guilt phase.

The Court granted no new cases beyond the four that were announced last Friday.

Among other cases denied, these were some of the issues:

** The authority of the Environmental Protection Agency, when it imposes a stricter limit on air pollution, to require some sources of pollution to continue to obey earlier, less stringent air quality standards. (National Petrochemical v. South Coast Air Quality, 07-311, and Chamber of Greater Baton Rouge v. South Coast Air Quality, 07-333.)

** Whether a judge or judge has the role of deciding whether a worker has been retaliated against for protesting discrimination in the workplace — an issue that divides the lower courts. (James v. Metro Government of Nashville, 07-367).

** The validity of a conviction fo wire fraud based upn electronic transfers of money that were not specifically alleged in the indictment. (Ratliff-White v. U.S., 07-471).

** Whether federal law that protects the right to public education of disabled pupils requires pre-school development services to be continued until an education plan is in place — an issue that has led to conflicting rulings in lower courts. (D.P., et al., v Broward County, Fla., School Board, 07-613).

The Justice Department has urged the Supreme Court to allow the lower courts to continue to explore– without the Justices’ involvement — whether to apply the Sixth Amendment right to confront one’s accusers to sentencing hearings, including those involving the death penalty. In a brief filed Dec. 13 in Fields v. U.S. (07-6395), U.S. Solicitor General Paul D. Clement argued that there is not yet “a sufficiently developed split [among lower courts] to warrant this Court’s review at this time….Further consideration of this issue in the lower courts is warranted…”  In the meantime, it argued that the right of confrontation does not apply at sentencing proceedings.

The case involves Sherman Lamont Fields, convicted of murder and other federal charges based on crimes he committed after escaping from federal custody in Waco, Texas, six years ago.  (The government brief can be downloaded here. A post on this blog discussing Fields’ petition can be found here; the post includes links to Fields’ petition, filed Sept. 4, and to the Fifth Circuit Court decision at issue.  Fields’ reply brief, filed Thursday, can be downloaded here.)

Fields’ appeal does not ask the Court to apply the right of confrontation to all criminal sentencing, but only to those proceedings that involve a potential death sentence.  The Court has long drawn a distinction between limits on evidence at the guilt phase, and the far more relaxed admission of evidence at sentencing proceedings in general. Fields contends that the law of sentencing has evolved to the point that, at least for death sentencing, more rigorous constitutional limits should apply to the evidence allowed

The Confrontation Clause issue Fields raises tests the scope of two Supreme Court rulings — the 1949 decision in Williams v. New York. finding that the Clause does not apply at sentencing, and the 2004 decision in Crawford v. Washington, barring the use as evidence of testimonial statements that had not been subjected to cross-examination.

Fields’ petition contended that, at least for death sentencing hearings, the jury should be allowed to hear only facts that have been tested through confrontation with the witnesses — the Crawford principle,  and thus testimony at Fiields’ sentencing (that he had previously been violent and would be dangerous in the future) should not have been allowed because it had not been subjected to cross-examination.

The government opposition relied upon the Williams decision, and a variety of more recent lower court rulings that have declined to apply the Clause to sentencing.  But it also drew a distinction between the use of untested testimonial evidence when a jury is deciding whether a given murder defendant is eligible for a potential death sentence, and when it is choosing whether to actually impose that sentence. 

The challenged evidence in Fields’ case, it said, was offered only on the second point.  The sentence-selection phase, it added, “involves a broad inquiry into all evidence relevant to the ultimate decision of what penalty to impose.”  No federal appeals court, the brief noted, “has held that the Confrontation Clause bars testimonial hearsay from the selection phase” of a federal death penalty proceeding.  The ruling in Fields’ case, it added, is the first such ruling in a federal appeals court to face the issue squarely.

One of the other reasons the government offered for leaving the issue to percolate in lower courts is that the Court’s 2002 ruling in Ring v. Arizona was said to be reshaping the issue of applying Sixth Amendment rights to death sentencing. Ring requires jurors to apply a reasonable doubt standard when it decides on the existence of a fact that would be necessary to make a murder defendant eligible for the death penalty. Lower courts need time to consider the impact of the Ring ruling on capital sentencing generally, the government asserted. (Fields’ petition also raised a Ring question, testing whether the reasonable doubt standard applied when jurors weigh whether aggravating factors outweigh mitigating factors.)

The government response also contended that procedural aspects of this particular case make it “an inadequate vehicle” on the Confrontation Clause question.

Fields’ reply, filed at the Court Thursday, argued that “there is a genuine and widespread conflict right now over the issue of whether a capital defendant should have the right to confront and cross-eamine adverse witnesses at the penalty phrase.  The conflict is sufficient to demontrate a need for guidance that calls on this Court to take up and resolve the question in this case.”

It went on to argue that Fields’ case is “ideally suited’ to raise the issue.  The confrontation violations at his sentencing hearing were “manifestly harmful.,” it argued.

UPDATE 9:50 AM, Thursday: Petition now available for download.

Nearly six decades ago, the Supreme Court ruled that judges, in deciding whether to impose a death sentence, may rely upon out-of-court statements not challenged by cross-examination. The Court in the case of Williams v. New York drew a sharp line between constitutional limits on evidence when guilt was at issue, and the more open-ended use of information when deciding on a sentence. A new appeal to the Supreme Court seeks to test whether that line still holds. It asks for a ruling that the Sixth Amendment’s right to confront witnesses applies at sentencing — and, especially, in capital sentencing hearings.

The petition in Fields v. U.S. (07-6395, download here), filed Sept. 4 by the Capital Punishment Center at the University of Texas Law School, raises five issues, but the Confrontation Clause question is the central one. It asks whether the Supreme Court’s 2004 decision in Crawford v. Washington, limiting the use at trial of out-of-court testimony not subjected to cross-examination, has so altered constitutional understanding that it should be extended to sentencing. The dissenting judge in the Fields case, relying upon Crawford and recent developments in criminal sentencing, argued that, when a death sentence depends upon fact-finding, the facts should only be those “tested through confrontation.”

The Fifth Circuit Court, in this 2-1 decision on March 29, ruled that the Williams decision — although not directly controlling because it was based on the Due Process Clause, not the Confrontation Clause — used logic that is still valid, maintaining a constitutional distinction between trial evidence and sentencing information. “Williams’s distinction between guilt and sentencing proceedings and its emphasis on the sentencing authority’s access to a wide body of information in the interest of indvidualized punishment is relevant to our Confrontation Clause inquiry,’” it concluded. The 1949 decision has never been overruled, the majority said, and, in fact, the Supreme Court continues to cite it “for the proposition that there are no per se constitutional prohibitions on the introduction of hearsay at sentencing.”

The case involves Sherman Lamont Fields, who was convicted of murder and other federal criminal charges based on crimes he committed after escaping from federal custody. He was sentenced to death for the murder conviction, based on the shooting murder of his ex-girlfriend, Suncerey Coleman, in Waco, Texas, in November 2001.

At the penalty phase of his trial, the prosecution offered testimonial hearsay through live witnesses and documents to prove that Fields had previously been violent and would be dangerous in the future — “non-statutory” aggravating circumstances. None of that had been subjected to cross-examination. Defense lawyers objected to its introduction, but the trial judge allowed it.

Fields’ appeal to the Supreme Court contends that “there are many strong arguments for reconsidering and limiting” the reach of the 1949 Williams decision. At that time, the Court had not yet applied the Confrontation Clause to the states. In addition, the petition argues, the lower courts are increasingly divided on whether confrontation rights exist at capial sentencing. The most important factor, Fields’ lawyers contend, is that “it is impossible to assess the continuing precedential force of Williams,” at least for capital cases, in the face of the Supreme Court’s “continuing reevaluation of Sixth Amendment doctrine in recent years.”

The two main errors it alleges in the Fifth Circuit majority ruling were the view that the Confrontation Clause is still only a constitutional rule agaiinst hearsay, tied to the rules of evidence, and the conclusion that basically different procedures are allowed in the guilt phase from those in the sentencing phase.

The federal government’s response to the appeal is due Oct. 11..