Breaking News

Relist Watch

John Elwood reviews Monday’s relisted cases.

The newspapers were right: snow was general all over New England this week … though, perhaps not as general as some meteorologists had feared. In any event, we hope those of you who found yourselves with an undeserved mid-week snow day made judicious use of your extra time – by catching up on “back issues” of “Relist Watch”!

We begin, in customary fashion, with old news – which this week comes in three flavors: “good,” “not so good,” and “meh.” In the good-news category, the phonetically challenging OBB Personenverkehr AG v. Sachs, 13-1067 which, after performing a cert.-stage hat-trick – earning a rescheduling, a CVSG, and a relist – achieves the further distinction of winning a grant (over the Solicitor General’s recommendation to deny, no less). The petition, filed by state-owned rail company of the Republic of Austria (or, more fitting given the case caption, die Republik Österreich), asks whether agency under the Foreign Sovereign Immunities Act is determined according to the factors set forth in First National City Bank v. Banco Para el Comercio Exterior de Cuba or standard agency law; and whether a tort claim for personal injuries suffered in connection with travel by personenverkehr (literally, “person transportation” or “passenger transportation”) outside of the United States is “based upon” the act occurring outside of the United States or the sale of the ticket in the United States for travel outside of the country. A hearty glückwünsche to our Austrian friends!

In the not-so-good news category, there’s Irish v. Louisiana, 14-182, whose denial on Monday marks the end of its run of Hibernian good fortune (one reschedule and two relists). Guess we’ll just have to keep waiting to find out whether due process requires reversal of a conviction when the lead prosecutor withheld evidence that he considered a key witness to be a liar. Cue sad trombone.

And rounding out this week’s old business with a resounding “meh” is Bower v. Texas, 14-292, a case concerning a quadruple murder a long time ago, in a galaxy far away. The case appears to have notched its third relist; we can’t be sure because – in keeping with its usual practice when there’s a long break between Conferences – the clerk’s office has yet to update its docket. >:o The petitioner in Bower asks (1) “[w]hether the former Texas special issues for death penalty sentencing [provide] . . . an appropriate vehicle for the jury to consider and give full effect to mitigating evidence of good character [under Penry v. Lynaugh]”; (2) whether the state’s post-trial disclosure of evidence relating to ammunition used in the crime resulted in a violation of the Fifth and Fourteenth Amendments under Brady v. Maryland; and finally, the so-called Lackey claim: (3) whether “executing a defendant who has already served more than 30 years on death row” amounts to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

On the new relist front, we’ve potentially one new initiate, Kansas v. Gleason, 14-452 – though, because of the state of the docket (>:o), it’s hard to say exactly what status it occupies – relist, hold, or (unlikely) rescheduled. Gleason arises from the petitioner’s conviction and capital sentence in a 2004 double murder in Great Bend, Kansas. On appeal, the Kansas Supreme Court affirmed Gleason’s conviction, but reversed his death sentence, holding that the trial court’s failure “to affirmatively inform the [capital-sentencing] jury that mitigating circumstances need not be proved beyond a reasonable doubt” violated the Eighth Amendment. On cert., Kansas challenges this “affirmative[e] instruct[ion]” requirement, citing a conflict between Kansas and “the decisions of courts in several states.”

Gleason gives us an easy segue into the uneasy world of rescheduled cases, as it raises the same QP as one of last week’s rescheduled cases, Kansas v. Carr, 14-450 – as well as the identically named, but not-yet-relisted-or-rescheduled, Kansas v. Carr, 14-449. The Carr cases arise from a string of grisly crimes (carjacking, armed robbery, rape, felony murder, capital murder) committed in Wichita by brothers Reginald Jr. (14-450) and Jonathan D. Carr (14-449) – crimes for which each brother received sentences of both life imprisonment and death. In addition to raising the Gleason QP, both Carr cases also ask whether the Confrontation Clause applies to the “selection” phase of capital sentencing phase proceedings, and whether the trial court’s decision not to sever the sentencing phase of the brothers’ trial violated the Eighth Amendment right to an “individualized sentencing” determination. Though one Carr petition (14-450) has been fully briefed and rescheduled (although the new Conference still hasn’t been set), the other case (14-449) is still awaiting the arrival of a brief in opposition (and presumably, a reply), making it seem likely that the Court has rescheduled Carr (14-450) and relisted Gleason so that they can both be considered at the same Conference as Carr (14-449).

Adding a soupçon of nominal confusion here is Carr v. Kansas, 14-6810, a case that has remained rescheduled without a Conference date for over three weeks now. The case is the cross-petition in the Reginald Carr case above (14-450), in which the petitioner asks whether a “jury view” of locations relevant to a criminal case is a critical stage of a criminal trial requiring the presence of a defendant and assistance of counsel. Who knew there were that many murders (or, for that matter, Carrs) in Kansas?

Last (and probably least) of this week’s rescheduled cases is Shao v. Wang, 14-7244. The case, which comes to the Court from California’s intermediate court of appeals, appears to involve two post-judgment orders relating to the custody and appointment of counsel for the petitioner’s two children; if you want more information than that, we recommend forgoing the petitioner’s er, challenging cert. petition (which spends a great deal of time discussing California law) and instead reading the court of appeals’ recitation of the facts and issues. (Trust us on this one, fo shao.) Shao was distributed for the January 23 Conference, but a week prior to its consideration, the Court redistributed the case for the February 20 Conference. Thus it appears to be a rare “undeclared rescheduled case.” Read into that what you will.

Alright, that’s it for us this week. Enjoy the snow!

Thanks to Ralph C. Mayrell and Conor McEvily for compiling and drafting this update.



(relisted after the January 9, January 16, and January 23 Conferences)


(relisted after the January 23 Conference)



Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jan. 30, 2015, 11:42 AM),