Breaking News
Petitions of the Week

Two death penalty cases and free speech at animal facilities

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether the Texas Court of Criminal Appeals properly followed the Supreme Court’s orders in a capital defendant’s case claiming ineffective assistance of counsel, whether Georgia can require capital defendants claiming intellectual disability to prove the disability beyond a reasonable doubt, and whether a Kansas law criminalizing trespass by deception at animal facilities violates free speech.

Ineffective assistance of counsel

In June 2020, the Supreme Court issued a summary reversal – meaning it decided the case without merits briefing or oral argument – in Andrus v. Texas, a capital defendant’s claim of ineffective assistance of counsel under Strickland v. Washington. In an unsigned opinion, the court ruled that Terence Andrus had demonstrated that his lawyer provided deficient performance at sentencing for failing to investigate or introduce mitigating evidence. The Supreme Court instructed the Texas Court of Criminal Appeals to consider whether this inadequate counsel prejudiced Andrus – i.e., whether the mitigating evidence might have prompted at least one juror to opt for life without parole rather than death.

On remand, the Texas court ruled that the inadequate counsel had not prejudiced Andrus. Filing a new petition in a second Andrus v. Texas, Andrus maintains that the Texas court disregarded the Supreme Court’s express guidance for conducting the prejudice analysis. In particular, Andrus argues that the Texas court, despite the Supreme Court’s opinion to the contrary, did not consider how Andrus’ lawyer’s deficient performance distorted the trial record, and it ignored new mitigating evidence in focusing solely on the state’s aggravating evidence. Andrus further argues that the Texas court’s decision conflicts with “vertical stare decisis,” the principle that lower courts must follow the Supreme Court’s decisions.

Intellectual disability and the death penalty

In 2012, a jury in Georgia convicted and sentenced Rodney Young to death for killing the son of his estranged girlfriend, rejecting his claim that he was intellectually disabled. In Georgia, a defendant invoking Atkins v. Virginia – the Supreme Court holding that the Eighth Amendment prohibits executing a person with intellectual disability – must prove the disability beyond a reasonable doubt. In reviewing Young’s case, the Georgia Supreme Court relied on a 1952 Supreme Court rejection of a challenge to a state law requiring a defendant to prove beyond a reasonable doubt that he is not guilty by reason of insanity.

In his petition, Young maintains that Georgia is the only state in the nation that requires proof of intellectual disability beyond a reasonable doubt, the most demanding burden in American law. He asks the justices to decide whether Georgia’s standard violates the due process clause and the Eighth Amendment by creating unacceptable risks that constitutional rights will remain unenforced and that intellectually disabled persons will be executed. The case is Young v. Georgia.

Free speech and criminal trespass at animal facilities

A Kansas law provides criminal penalties for trespassing at “animal facilities” with intent to damage the enterprise, including when consent to access is gained by deception. The law defines an animal facility as any place that houses or breeds animals used for food production, agriculture, or research. In 2018, the Animal Legal Defense Fund – which, according to Kansas Gov. Laura Kelly’s petition, planned to use deception to gain access to animal facilities in order to gain information about them – sought a declaratory judgment and permanent injunction on the ground that the law violates the First Amendment’s free speech clause.

The district court agreed, and the U.S. Court of Appeals for the 10th Circuit affirmed that decision. To the 10th Circuit, the law regulates speech because it excludes consent obtained by deception, and the law implicates speech because “speech-creating activity,” such as taking pictures, would occur at the animal facility. The 10th Circuit further ruled that the law discriminates on the basis of viewpoint.

In her petition, Kelly argues that the 10th Circuit ruled incorrectly because trespass by deception is not speech, or at least not protected speech, and because the “intent to damage” component of the law is not viewpoint discrimination. Kelly further claims a circuit split on this issue, including with reference to a U.S. Court of Appeals for the 8th Circuit decision upholding a similar Iowa law concerning agricultural facilities. The case is Kelly v. Animal Legal Defense Fund.

These and other petitions of the week are below:

CLMS Management Services Limited Partnership v. Amwins Brokerage of Georgia, LLC
Issue: Whether a provision of state law prohibiting mandatory arbitration in a policy of insurance issued by a foreign insurer is preempted by the Federal Arbitration Act or whether the McCarran-Ferguson Act reverse-preempts the Federal Arbitration Act.

Cedado Nuñez v. United States
Issue: Whether the three ways to identify nationless vessels enumerated in the Maritime Drug Law Enforcement Act are exhaustive.

Lyft, Inc. v. Seifu
Issue: Whether the Federal Arbitration Act requires the enforcement of a bilateral arbitration agreement providing that a worker cannot raise representative claims under California’s Private Attorneys General Act, thereby preempting the contrary holding in Iskanian v. CLS Transportation Los Angeles LLC.

Apple Inc. v. Qualcomm Incorporated
Issue: Whether a licensee has Article III standing to challenge the validity of a patent covered by a license agreement that covers multiple patents.

Hammond v. United States
Issues: (1) Whether a government agent’s direction to a wireless carrier to send a signal to a person’s phone, so that the phone reveals the person’s precise location and movements in real time, is a search within the meaning of the Fourth Amendment; and (2) whether a government agent’s good faith but objectively incorrect reading of a statute prevents the exclusion of constitutionally tainted evidence in a criminal trial.

Kelly v. Animal Legal Defense Fund
Issue: Whether Kan. Stat. Ann. § 47-1827(b), (c), and (d) violate the free speech clause of the First Amendment by criminalizing trespass by deception at animal facilities with intent to damage the enterprise.

Young v. Georgia
Issues: (1) Whether requiring a capital defendant to prove his intellectual disability beyond a reasonable doubt violates the due process clause by creating an unacceptable risk that a constitutional right will go unenforced; and (2) whether requiring a capital defendant to prove his intellectual disability beyond a reasonable doubt violates the Eighth Amendment by creating an unacceptable risk that an intellectually disabled person will be executed.

Andrus v. Texas
Issues: (1) Whether, on remand, the Texas court rejected the Supreme Court’s conclusions in Andrus v. Texas, which were amply supported by the habeas and trial records, and whether the Texas court disregarded the Supreme Court’s express guidance for conducting a prejudice analysis pursuant to Strickland v. Washington; and (2) whether the Texas court’s failure to adhere to the Supreme Court’s decision conflicts with our constitutional system of vertical stare decisis and creates widespread confusion regarding the proper legal standard that courts must use in assessing whether the Sixth Amendment right to effective assistance of counsel is violated in death-penalty cases.

Recommended Citation: Andrew Hamm, Two death penalty cases and free speech at animal facilities, SCOTUSblog (Dec. 10, 2021, 4:54 PM),