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Justices add confrontation-clause case to next term’s docket

The Sixth Amendment gives a defendant in a criminal prosecution the right “to be confronted with the witnesses against him.” On Monday, the Supreme Court agreed to take up the case of Darrell Hemphill, who was convicted for the 2006 shooting death of a child, who was a passenger in a car that drove by a fight on a street in the Bronx. The question that the justices agreed to decide is whether Hemphill “opened the door” at his trial to the use of evidence that would normally be barred by the Confrontation Clause. Hemphill challenged prosecutors’ use of a statement by Nicholas Morris, whom three eyewitnesses identified as the shooter, when he pleaded guilty to possessing a .357 revolver – a different kind of gun than the one that killed the child. Prosecutors introduced the statement after Hemphill attempted to shift blame to Morris, eliciting testimony about the recovery of a 9-mm cartridge from Morris’ nightstand shortly after the shooting.

The announcement that the justices would review Hemphill’s case came on the list of orders from last week’s private conference. Hemphill’s case was the only new addition to the court’s docket for next fall. The justices also asked the federal government for its views in Gannett Co. v. Quatrone, involving the pleading standard for employee benefits cases. There is no deadline for the acting solicitor general to file her brief.

The court rejected a petition for review filed by Frederick Whatley, who was convicted of murder in connection with an armed robbery in Georgia. At sentencing, prosecutors ordered Whatley to reenact the crime in front of the jury, with a toy gun and shackles at his arms and legs. After his appeals were unsuccessful, Whatley sought post-conviction relief, arguing that his lawyer’s failure to object to his shackling deprived him of his constitutional right to effective assistance from his lawyer. Whatley argued that U.S. Supreme Court decisions indicate that it is “inherently prejudicial” for a defendant to appear before a jury in shackles, but both the state courts and the lower federal courts rejected his claims. On Monday the justices turned down his appeal, which contended that the Georgia courts unreasonably applied the Supreme Court’s cases on shackling in determining whether the failure by Whatley’s lawyer to object to his shackling would have made a difference.

Justice Sonia Sotomayor dissented from the court’s decision not to take up Whatley’s case, writing that she would have reversed the lower courts’ rulings and sent the case back for a new sentencing proceeding. It was “clearly unreasonable,” Sotomayor contended, for the state courts “to ignore entirely the ways in which visible shackling is likely to distort the outcome of a capital sentencing proceeding.” Specifically, Sotomayor explained, jurors who see a defendant in chains “will assume court officials have determined those chains were necessary to prevent the defendant from trying to escape or attack the lawyers, the judge, or even the jurors” – suggesting that he will also be dangerous if sentenced to life in prison without the possibility of parole. Particularly when Whatley had a “relatively minor” criminal history, Sotomayor posited, it is “reasonably probable” that at least one juror would have voted for a life sentence, rather than the death penalty, if Whatley had testified without chains. “Because I would not allow the State to put Frederick Whatley to death based on such a constitutionally flawed sentencing proceeding,” Sotomayor concluded, “I respectfully dissent.”

Sotomayor also issued a statement regarding the court’s decision to deny review in the case of Sharon Brown, who filed a federal civil rights lawsuit against Polk County, Wisconsin, and corrections officers there after she was subjected to a cavity search while in jail before trial on shoplifting charges. Brown asked the Supreme Court to weigh in on what degree of suspicion the Fourth Amendment requires before police can order such a search – whether it requires only reasonable suspicion, as the U.S. Court of Appeals for the 7th Circuit held in her case, or whether more – such as probable cause and a warrant or an emergency – are required, as Brown contended. Sotomayor emphasized that Brown’s case presented “an important question,” but she agreed with the decision to deny review, observing that allowing other courts to consider the question “will enable us to deal with the issue more wisely at a later date.” However, Sotomayor stressed, “the degree of suspicion required for a search should be substantially informed by the availability of less intrusive alternatives.” For example, she observed, prison officials could have ordered an X ray or an ultrasound, which would be less invasive.

Nearly three months after Inauguration Day, the justices vacated a ruling by the U.S. Court of Appeals for the 3rd Circuit that rejected a challenge to the extension of the deadline for the receipt of absentee ballots in Pennsylvania. Republicans challenging the extension had urged the justices to take up their appeal, arguing that the case presented “critically important issues about the conduct of federal elections that have split the lower courts” – in particular, whether state courts and state officials can change election rules established by the legislature, to which the U.S. Constitution gives the power to set rules for federal elections. In a brief filed in late March, the challengers urged the justices to go ahead and decide the case, maintaining that it was not moot. But if the case is moot, they added, the justices should vacate the 3rd Circuit’s decision; the justices chose the latter option on Monday.

The justices once again did not act on Dobbs v. Jackson Women’s Health Organization, Mississippi’s request for the Supreme Court to weigh in on the constitutionality of a state law that bans abortion after the 15th week of pregnancy. The state came to the Supreme Court in June of last year, after the lower courts struck down the law as unconstitutional; the justices have now considered the case at 10 consecutive conferences without acting on it.

The justices also did not act on New York State Rifle & Pistol Association v. Corlett, which the justices considered for the third time at their conference last week. At issue in the case is a question left open after the justices’ 2008 ruling in District of Columbia v. Heller and their 2010 decision in McDonald v. City of Chicago, holding that the Second Amendment protects a right to have a handgun in the home for self-defense: whether and to what extent the Second Amendment protects a right to carry a handgun outside the home for self-defense.

The justices will meet for their private conference again on Friday, April 23.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Justices add confrontation-clause case to next term’s docket, SCOTUSblog (Apr. 19, 2021, 12:04 PM),