On Point

Questions presented:

1.  Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment.

2.  Whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal.

Question presented:

Whether a state offense constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43), on the ground that the state offense is “described in” a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks.

Glossip v. Gross, USSC No. 14-7955, 2015 WL 2473454 (June 29, 2015), affirming Warner v. Gross, 776 F.3d 721 (10th Cir. 2015); Scotusblog page (includes links to briefs and commentary)

In a 5-to-4 vote, the Supreme Court rejects the claims of Oklahoma death-row prisoners that the use of a particular drug (midazolam) in the three-drug lethal injection protocol violates the Eighth Amendment because it creates an unacceptable risk of severe pain. In addition to deep disagreements about the applicable Eighth Amendment standard and the lower court’s fact-finding, the case is notable for the sparring between two concurring justices (Scalia and Thomas) and a dissenting justice (Breyer, joined by Ginsburg), who now believes “it highly likely that the death penalty violates the Eighth Amendment” and that the Court should ask for full briefing on that basic question. (Breyer dissent at 1, 2).

Attention appellate practitioners: We are pleased to present this guest post by Andrea Cornwall, Regional Attorney Manager if the SPD’s Milwaukee Appellate Office, about the imminent change in the rules governing references to victims in appellate brief.

Johnson v. United States, USSC No. 13-7120, 2015 WL 2473450 (June 26, 2015), reversing and remanding United States v. Johnson, 526 Fed. Appx. 708 (8th Cir. 2013) (per curiam) (unpublished) (8th Cir. 2013); Scotusblog page (including links to briefs and commentary)

A six-Justice majority of the Supreme Court holds that “the indeterminacy of the wide-ranging inquiry required by the residual clause [of the Armed Career Criminal Act] both denies fair notice to defendants and invites arbitrary enforcement by judges” because the case law has failed to establish a generally applicable test that prevents application of the clause from devolving into “guesswork and intuition.” (Slip op. at 5, 8). Therefore, using the residual clause to increase a defendant’s sentence denies the defendant due process of law.

State v. Kamille M., 2014AP2911, District 1, 6/26/15 (one-judge decision; ineligible for publication); case activity

Trial counsel wasn’t ineffective at Kamille M.’s TPR grounds trial for failing to object to hearsay and to the state’s veiled reference to the best interests of the child during closing arguments.

State v. Nathan Lewis Teasdale, 2015AP338-CR, District 4, 6/25/15 (one-judge decision; ineligible for publication); case activity (including briefs)

An officer reasonably suspected that Teasdale was violating § 341.61(2), which prohibits displaying on a registration plates that are not issued for that vehicle, even though the officer was mistaken in believing that the make and model of the car was different from the make and model of the car for which the plates were issued.

Town of Bloomfield v. Petko Zvetkov Barashki, 2015AP226, District 2, 6/24/15 (one-judge decision; ineligible for publication); case activity

In a case the court of appeals aptly describes as “unusual,” the court exercises its discretionary power of reversal under § 752.35 to throw out Barashki’s OWI 1st conviction and refusal finding on the grounds that the evidence doesn’t show the officer had reasonable suspicion to stop Barashki.

Caroline P. v. Shawn H., 2014AP2004 & 2014AP2005, District 3, 6/24/15 (one-judge decision; ineligible for publication); case activity

Even if the circuit court considered the statutory factors for termination of parental rights under § 48.426, the court lacked an evidentiary foundation in the record to make a determination as to whether termination was in the best interests of the child.

City of Los Angeles v. Patel, USSC No. 13-1175, 2015 WL 2473445 (June 22, 2015), affirming 738 F.3d 1058 (9th Cir. 2013) (en banc); Scotusblog page (including links to briefs and commentary)

A majority of the Supreme Court holds that a Los Angeles ordinance compelling hotel operators to make their guest registries available to police for inspection on demand is facially unconstitutional because it penalizes the hoteliers for declining to turn over their records without affording them any opportunity to obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply. Along the way, the Court clarifies that “facial challenges under the Fourth Amendment are not categorically barred or especially disfavored” (slip op. at 4), clarifying language from Sibron v. New York, 392 U.S. 40 (1968), that some courts have read as barring facial challenges to statutes under the Fourth Amendment.