On Point: OT 21

Samia v. United States, USSC No. 22-196, 143 S. Ct. 2004, June 23, 2023, affirming U.S. v. Hunter, et al., Nos. 18-3074-cr, 18-3489-cr, 19-790-cr (2nd Cir. Apr. 20, 2022) (not reported); Scotusblog page (with links to briefs and commentary)

A majority of the Supreme Court affirms the use of a confession of one non-testifying co-defendant against another defendant, and its rationale shows, in the words of the dissenters, that the majority thinks the rule in Bruton v. United States, 391 U.S. 123 (1968), “should go.” (Kagan dissent at 10; Jackson dissent at 1).

Haaland et al. v. Brackeen et al., USSC No. 21-376, 143 S.Ct. 1609 (June 15, 2023), affirming in part, reversing in part, and vacating and remanding 994 F.3d 249 (5th Cir. 2021); Scotusblog page (including links to briefs and commentary)

This is a guest post by Attorney Matthew Giesfeldt of the Madison Appellate office, who is also the SPD’s Family Defense Practice Coordinator.

The Indian Child Welfare Act, or “ICWA,” is a federal law enacted in response to concern that nontribal public and private agencies were removing Native American children from their homes to non-tribal placements at “an alarmingly high percentage[.]” Slip op. at 2. Wisconsin codified ICWA as state law in 2009. Wis. Stat. § 48.028. Under both the federal and state statutes, agencies that place children out of the home (such as local child-protection agencies) must adhere to stricter requirements to remove a tribal child than they must follow to remove a non-tribal child. For example, tribes may intervene in child placement cases, and agencies seeking to remove tribal children from tribal homes must engage in “active efforts” to help the parents and prevent the removal. Wis. Stat. § 48.028(4)(e)2.

In these consolidated cases, the biological parents and each foster parent couple seeking to adopt agreed that a tribal child should be adopted by nontribal parents, but a tribe intervened in opposition to the others’ plans. The parents filed a federal suit challenging ICWA, which three states joined. In one of the cases, the adoption was denied based upon the tribe’s intervening objection, though in the other two cases the tribe ultimately abandoned its objection, allowing the adoption to go through. Slip op. at 6-8.

The Court addressed four separate constitutional challenges to ICWA:

Pugin v. Garland, USSC Nos. 22-23 & 22-331, 2023 WL 4110232 (June 22, 2023), affirming Pugin v. Garland, 19 F.4th 437 (4th Cir. 2021) and reversing Garland v. Cordero-Garcia, 44 F.4th 1181 (9th Cir. 2022); Scotusblog page (including links to briefs and commentary

Noncitizens convicted of an “aggravated felony” may be deported from the United States. The definition of “aggravated felony” includes federal or state offenses “relating to obstruction of justice.” 8 U. S. C. §1101(a)(43)(S). The question in these consolidate cases is whether an offense “relat[es] to obstruction of justice” even if the offense does not require that an investigation or proceeding be pending at the time of the defendant’s acts. In a 6 to 3 ruling, the Supreme Court holds that an investigation or proceeding need not be pending for the offense to be an aggravated felony.

Smith v. United States, USSC No. 21-1576, 2023 WL 4002949 (June 15, 2023), affirming United States v. Smith, 22 F. 4th 1236 (11th Cir. 2022); Scotusblog page (including links to briefs and commentary).

A unanimous Supreme Court holds that the Constitution does not bar retrial of a defendant whose conviction is reversed because the prosecution occurred in the wrong venue and before a jury drawn from the wrong location.

Lora v. United States, USSC No. 22-49, 2023 WL 4034313 (June 16, 2023), vacating and remanding United States v. Lora, unreported summary order (2d Cir. Feb. 15, 2022); Scotusblog page (including links to briefs and commentary)

Resolving a circuit split, a unanimous Supreme Court engages in a plain-language reading of a statute requiring a judge to impose a consecutive sentence for certain crimes and holds the statute does indeed mean what it says, and no more.

Dubin v. United States, USSC No. 22-10, 2023 WL 3872518 (June 8, 2023), vacating and remanding United States v. Dubin, 27 F.4th 1021 (5th Cir. 2022); Scotusblog page (including links to briefs and commentary)

Faced with competing interpretations of a penalty enhancement statute, the Supreme Court adopts the narrower interpretation based on both a careful reading of the language and context of the statute and its “tradition[] of “exercis[ing] restraint in assessing the reach of a federal criminal statute.” (Slip op. 17).

New York State Rifle & Pistol Association Inc. v. Bruen, USSC No. 20-843, 6/23/22 reversing N.Y. State Rifle & Pistol Ass’n v. Beach (2nd Cir. unpublished); Scotusblog page (including briefs and commentary)

You can read tons of analysis of, and commentary on, of this precedent-demolishing (and establishing) case at Scotusblog (and many, many other places). SCOTUS abandoned its previous balancing approach to assessing gun regulations under the Second Amendment in favor of a history-only approach (with that “history,” as so often in SCOTUS, very much in dispute). As to the specific question before it, the Court struck down state concealed-carry licensing regimes that invest authorities with discretion to decide whether to issue a permit to a given applicant (the so-called “may-issue” model).

Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 2022 WL 2276808, June 24, 2022, reversing 945 F.3d 265 (5th Cir. 2019); Scotusblog coverage

As you all know, Dobbs overruled Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), which held that a woman has a constitutional right to an abortion under the 14th Amendment of the United States Constitution. Dobbs has implications for SPD clients. This post highlights a few.

Denezpi v. United States, No. 20-7622, 2022 WL 2111348, June 13, 2022, affirming U.S. v. Denezpi, 979 F.3d 777 (10th Cir. 2020); Scotusblog page (including briefs and commentary)

Denezpi was prosecuted in the Court of Indian Offenses, a creature of the federal Bureau of Indian Affairs that provides a criminal court system for those (relatively few) tribes that haven’t set up their own. After serving a 140-day sentence in that prosecution, he was charged for and convicted of the same conduct in federal court—and ultimately given a 30-year sentence. The Supreme Court rejects his claim that the second prosecution was barred by the Double Jeopardy Clause.

Last week SCOTUS issued Kemp v. United States construing Federal Rule of Civil Procedure 60(b)(1). That rule allows a party to seek relief based on “mistake, inadvertence, surprise or excusable neglect” within one year of the date on which a judgment becomes final. Wisconsin’s analog is §806.07.  The issue in Kemp was whether the term “mistake” means mistakes by parties or whether it includes mistakes by judges.