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No new grants, some notable denials on today’s order list

The Supreme Court issued additional orders from last week’s conference this morning. Last week, the justices added one new case from that conference to their merits docket for the term: Honeycutt v. United States, in which they will consider whether a co-conspirator can be held independently liable for forfeiture of the proceeds of a drug conspiracy.

There were no new grants today, nor did the court call for the views of the federal government in any new cases. Today’s order list did, however, deny review in several noteworthy cases. Perhaps the highest-profile denials came in two class-action lawsuits against the National Football League for current and future injuries to the brains of NFL players. The specific question that the justices had been asked to review in Armstrong v. National Football League and Gilchrist v. National Football League was whether the approval of a settlement of the lawsuits was consistent with federal rules governing class actions. The justices had considered both cases for the first time at their conference last week but denied them today without considering them at a second conference, which suggests that they did not regard them as particularly close cases.

The justices also denied review in several death-penalty cases, each of which had been relisted multiple times. Although the timing may be a coincidence, the denials came just a few days after a dramatic series of events last week (discussed in more detail in this post) in which the court twice put the execution of an Alabama inmate on hold, only to eventually allow it to proceed. The justices had considered the case of Henry Sireci, the petitioner in Sireci v. Florida, nine times before ultimately denying review today. Sireci was convicted in 1976 of first-degree murder and sentenced to death. The main physical evidence against him was hair at the crime scene – which, jurors were told, matched Sireci’s hair. Sireci argued that the FBI has subsequently admitted that the kind of hair-comparison evidence on which the state relied to convict him is statistically invalid, and he sought to reopen his case to account for the flawed testimony against him.

Justice Stephen Breyer dissented from today’s denial of review. Breyer did not address the merits of Sireci’s argument. Instead, as he has done in the past, Breyer suggested that Sireci has spent so long on death row before being executed that he has been subjected to cruel and unusual punishment, in violation of the Constitution. When Sireci was first sentenced to death, Breyer observed, “the Berlin Wall stood firmly in place. Saigon had just fallen,” and over half of all of the Americans alive today had not yet been born. Arguing that, more broadly, the death penalty itself is not imposed consistently, Breyer repeated his view that “the time has come for this Court to reconsider the constitutionality of the death penalty.” But there was no other apparent support from the justices for that view today.

Breyer did have the backing of one of his colleagues, Justice Elena Kagan, in the case of Romell Broom, a death-row inmate in Ohio who had asked the court to weigh in once again on the use of lethal injection as a method of execution. In 2008, the court rejected a challenge to Kentucky’s lethal injection protocol against two inmates’ argument that the use of a particular drug as the first drug in the protocol violates the Constitution because it cannot reliably render the inmate unconscious, which would in turn cause him to suffer serious pain when the other two drugs were administered.

Broom’s case arose in a different context: Ohio had already attempted to execute him once, but the execution was called off after officials were unable to access a vein to establish an IV line. Broom made three arguments that he hoped would prompt the justices to grant review. First, he contended that the state cannot attempt to execute him again because the botched execution constituted cruel and unusual punishment. Second, he argued, another effort to execute him would violate the double jeopardy clause. Third, even if the first attempt at his execution was not cruel and unusual punishment, the second one would be.

The justices relisted Broom’s case four times before denying review today. The order denying Broom’s petition indicated only that Kagan and Breyer would grant the petition for review. However, in his dissent from the denial in Sireci, Breyer wrote that Sireci’s case was not “the only case during the last few months in which the Court has received, but then rejected, a petition to review an execution taking place in what I would consider especially cruel and unusual circumstances.”

The justices also denied today, without any noted dissents, two other death-penalty cases. James Tyler, the petitioner in Tyler v. Louisiana, was convicted of first-degree murder and sentenced to death in 1996. The public defenders who represented Tyler conceded before the jury that he was guilty, even though Tyler had told both the trial judge and his attorneys that he did not want to do so and had requested a new lawyer. In his petition for review, which was relisted twice before being denied, Tyler had asked the justices to weigh in on whether his attorneys’ conduct deprived him of his Sixth Amendment right to an effective attorney and what standard should be used to make that determination. The justices relisted Stokes v. South Carolina five times before finally denying review today. The petitioner in the case, Sammie Louis Stokes, was sentenced to death in 1999 for his role in two murders. Two attorneys had been appointed to represent him, but – unbeknownst to the trial court – one of those attorneys had prosecuted Stokes eight years earlier for an assault on his ex-wife. Stokes himself knew little about the prior case, including that the attorney had argued in that case that the ex-wife had told the truth. Stokes had asked the court to review whether the representation violated his constitutional right to have an attorney who does not have a conflict of interest, but it declined to do so.

Today’s orders are the last regularly scheduled ones of 2016. The justices’ next conference is January 6, 2017; they will return to the bench on January 9.

Recommended Citation: Amy Howe, No new grants, some notable denials on today’s order list, SCOTUSblog (Dec. 12, 2016, 11:56 AM),