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The Court “DIGs” in Boyer v. Louisiana – and sometimes silence can speak volumes.

One might joke that Monday’s order in  Boyer v. Louisiana, dismissing the writ of certiorari as improvidently granted (“DIG”), was issued to eliminate all traces of Justice Thomas’s single recorded oral argument remark in seven years (as noted in my summary of the oral argument).  But the Justices plainly did not view this dismissal as a joking matter.  Instead, four of them dissented from the order at length (Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan), while another three (Justice Alito concurring in the order, joined by Justices Scalia and Thomas) expressed their supportive rationale.  Only the Chief Justice and Justice Kennedy remained silent – although Justice Alito’s similar silence about the Speedy Trial merits may in fact reveal some quiet support for Justice Sotomayor’s expressed views on the merits.

Dissenting Justices shown in grey.

Dissenting Justices shown in grey.

Justice Sotomayor’s opinion almost reads as though it began as a majority, but then Justice Alito (who seemed favorably inclined on Boyer’s narrow point at oral argument) thought better of it.  The narrow question presented was under the Sixth Amendment’s “Speedy trial” guarantee:  if delay in a criminal defendant’s trial is “caused” by inadequate state funding for indigent defense counsel, should that delay be counted, even minimally, against the State when weighing the four factors the Court’s Speedy Trial precedents require?  The answer to this narrow question also seemed clear, because the Court already answered it in Vermont v. Brillion: yes, albeit perhaps not “heavily.”  Because the delay in Boyer’s capital murder prosecution seemed presumptively un-speedy (seven years), and because the state courts (and, it appeared, the state’s lawyers) had agreed that “the majority of the seven-year delay was caused by the lack of funding,” Boyer’s petition for certiorari was granted to correct what appeared to be a serious legal error, one that is likely to plague (if it is not already plaguing) other financially stretched jurisdictions.

So Monday’s dismissal of the writ as improvidently granted, after argument and for reasons that appear to have been presented (if not perfectly clearly) in Louisiana’s opposition to certiorari, comes as somewhat as a surprise.  Neither of the Justices’ opinions discusses the Court’s precedents for “DIGs” (“Dismissed as Improvidently Granted”), and Monday’s exercise speaks somewhat to the lack of clear guidelines for taking such action.  Indeed, some have suggested that the Court might also “DIG” the California same-sex marriage case, although when that suggestion was offered at oral argument Justice Scalia dismissed it with “we’ve crossed that river.”  But granting cert. is not always “crossing the river” with finality, as Monday’s order demonstrates.  However, the common wisdom is that one of the original voters to grant must later switch, to DIG a case.  Perhaps that explains Justice Alito’s decision to express his concurrence in the Monday’s order.

As for the “merits” of the DIG, Justice Alito says that the case was “taken up … on the basis of a mistaken factual premise.”  Although the Louisiana courts did indeed say that the majority of the seven-year delay was “caused by the lack of funding,” Justice Alito now says that the record reveals that “what [this] most likely means” is that the delay was “attributable” to the funding issue,  but that its cause was “defense requests for continuances.”  Because “the record simply does not support the proposition” for the Question Presented – that the state’s failure to fund counsel “caused” the delay – Justice Alito (joined by Justices Scalia and Thomas) concurs in now dismissing the writ.  Such a dismissal, of course, has no precedential bearing on the merits of the constitutional question that was originally presented.

Justice Sotomayor, while respectfully restrained, is clearly quite unhappy with the decision to avoid answering the merits question here.  Her ten-page dissent (joined by Justices Ginsburg, Breyer, and Kagan) is plainly designed to provide a full answer to the question: delays caused by a state’s failure to fund indigent defense must be counted against the state, even if the balance of other factors might still not support dismissal.  Indeed, one might speculate that Justice Sotomayor’s opinion started out as a draft majority (some of its statements sound distinctly “Court-like”).  But there is also good reason to believe that the Justices agreed to DIG the case in their Conference immediately after the argument, and that it simply took a few months for Justice Sotomayor’s busy Chambers (she has quickly proven to be an opinion-writing workhorse) to produce her lengthy opinion.

Justice Sotomayor writes that she would “defer to” the state court’s “factual determination,” and she gently but clearly chides the Court for not doing so – particularly when the Court is so eager to be deferential in other contexts (for this I would cite ADEPA habeas cases, although Justice Sotomayor does not).  Not only is the Court’s reading not as consistent with “the record” as Justice Alito contends, but “it is a mistake to second-guess the state court’s findings.”   Here, the state’s lawyers previously argued that the prosecution was not responsible for the lack of funding – rather, the state legislature and its local governmental units appeared to be in a fight for resources.  “But,” says Justice Sotomayor, “States routinely make tradeoffs in the allocation of limited resources,” and the state must “bear the consequences of these choices.”

Justice Sotomayor continued: “[T]here is no reason this Court should comb through the record to allow Louisiana to turn its back on its prior position” and argue, now, that it was defense counsel’s continuances that “caused” the delay.  (By the way, those defense continuance requests all seem to have been premised on the lack of funding for the defense to proceed, thus still arguably “caused” by the lack of funding.)  We ought not “substitut[e] the Court’s judgment for that of a state court” – such “matters of state law are better suited for the Louisiana court to address … on remand.”   The four dissenting Justices plainly would answer the narrow legal question on which cert. was granted, and leave all the rest to further argument once the case was sent back to Louisiana.  A favorable ruling for Boyer here might not result in his release, after a serious murder conviction.

Normally, Justice Sotomayor notes, the Court would not grant cert. to resolve simply a mistaken application, or even an erroneous fact-bound determination, of the four Barker v. Wingo constitutional speedy trial factors.  But the decision to dismiss here is “especially regrettable” because “Boyer’s case appears to be illustrative of larger, systemic problems in Louisiana.”  The Justice then outlines a number of studies and reports alleging serious problems in Louisiana’s indigent defense system.

Notably, perhaps, Justice Alito appears to carefully not take issue with Justice Sotomayor’s merits discussion – his opinion pointedly expresses no disagreement on the legal question presented.  Justice Sotomayor closes by noting that “the Court’s silence … is particularly unfortunate.  Conditions of this kind cannot persist without endangering constitutional rights.”  But perhaps, for the betterment of justice in Louisiana, the more notable silence is Justice Alito’s (and that of his four Brethren) on the merits of the question that Justice Sotomayor thoroughly mines.

Recommended Citation: Rory Little, The Court “DIGs” in Boyer v. Louisiana – and sometimes silence can speak volumes., SCOTUSblog (Apr. 30, 2013, 12:22 PM),