Consolidated Cases: Establishing Commonality for Finality
“There’s many a slip ‘twixt’ the cup and the lip” because “the opera ain’t over ‘til the fat lady sings.” Or, a case can quickly go in an unanticipated direction because there is no final appealable judgment until all claims are adjudicated – and knowing when that happens in consolidated actions can be tricky.
Coming Soon to the Supreme Court: Umaña v. United States?
On August 12, 2014, a divided Fourth Circuit denied a petition for rehearing en banc that had been filed by capital defendant Alejandro Umaña. Umaña had sought the rehearing en banc of a panel opinion, 750 F.3d 320 (4th Cir. 2014), in which a majority held that the Sixth Amendment’s Confrontation Clause does not apply to the sentencing selection phase of capital sentencing. Eight judges (Chief Judge Traxler, Judge Wilkinson, Judge Niemeyer, Judge King, Judge Shedd, Judge Duncan, Judge Agee, and Judge Floyd) voted to deny the rehearing en banc, while five (Judge Motz, Judge Gregory, Judge Keenan, Judge Wynn, and Judge Thacker) voted to grant the petition.
A leader in the MS-13 transnational criminal gang, Umaña was convicted in federal court of murdering two brothers (who were not affiliated with any gang) in a bar in Greensboro, N.C., after the brothers got into an argument with Umaña and other MS-13 members about the music that should be played on the jukebox. After the jury found Umaña eligible for the death penalty in the first portion of the sentencing phase, the proceeding moved to the sentencing selection phase. Over Umaña’s objection, the district court allowed the government to introduce hearsay testimony from Los Angeles police detectives concerning statements that MS-13 informants had given the detectives implicating Umaña in several unrelated murders in Los Angeles. Umaña argued that the Confrontation Clause required the government to produce the informants themselves at the sentencing selection phase. In a 2-to-1 decision, the Fourth Circuit panel (Niemeyer and Agee, with Gregory dissenting) affirmed the admission of the informants’ statements through the detectives.
CTS and the Value of Certification Statutes
By Steve Klepper (Twitter: @MDAppeal)
Yesterday’s excellent guest post by Derek Stikeleather managed to set a new record for daily traffic on the Maryland Appellate Blog. Many thanks to Derek (and to Howard Bashman for picking up the post at How Appealing). I’d like to briefly add a small point on CTS Corp. v. Waldburger.
I’ve seen news reports of efforts in the North Carolina Legislature to pass a bill, applying to all pending litigation, declaring that the state’s statute of repose was never intended to apply to tort cases involving contaminated groundwater. [Update: Beth Scherer at the North Carolina Appellate Practice Blog reports that both houses unanimously approved the legislation.] A Marylander might ask why the Fourth Circuit does not simply certify that question to the Supreme Court of North Carolina. Read More…
An Open Letter to Law Professors: Use This Case To Show Why Statutory Interpretation Is Not as Easy as It Sounds
The simplest rules and standards can often be the most confounding; just ask anyone who has had to divine whether an act was “willful.” The decisions of the Fourth Circuit and Supreme Court in CTS Corp. v. Waldburger offer a vivid case study of how the supposedly simple rules of statutory interpretation, which apply a statute’s “plain language” and “clear intent,” are anything but simple in practice. Both courts analyzed whether CERCLA’s express pre-emption of state-law statutes of limitations also pre-empts state-law statutes of repose. Last summer, a split panel of Fourth Circuit judges reversed a district court judge and held that CERCLA did pre-empt North Carolina’s statute of repose. But a divided Supreme Court, reversing again, held last week that it did not. Read More…
Lively Discussion at MSBA Supreme Court Roundup Panel
Yesterday at the MSBA Annual Meeting in Ocean City, the Appellate Practice Committee and Litigation Section put on a very good program about the U.S. Supreme Court’s soon-to-be concluded term. The panel was comprised of John Elwood, an appellate lawyer in the Washington, D.C. office of Vinson & Elkins; Jesse Holland, an Associated Press reporter who has covered the Supreme Court; and Prof. Louis Seidman, who teaches Constitutional Law at Georgetown Law Center. The moderator was Andrew Baida of Rosenberg Martin Greenberg LLP in Baltimore.
Among the cases the panel discussed were:
Schuette v. BAMN: In this 6-2 decision (with Justice Kagan recusing), the Court upheld Michigan voters’ amendment to the state Constitution prohibiting state and governmental entities in Michigan from including race-based preferences as part of the admissions process at state universities. Read More…
Affirmative Action—Past, Present, and Future
Like many pre-law students, I started studying the United States Constitution in college. I remember my professor commenting that the Constitution “protects the minority.” This was not so much a focus on a particular religious or racial category, but more a synthesis of the idea that the majority view easily prevails on any given issue, but it may not be the correct approach for society to use. A prime example has been this country’s civil rights movement—for too many years, the majority view allowed slavery, limited voting rights, and segregation in schools, housing, and employment. Read More…
DeWolfe Update: Legislative Standstill and a Modest Alternative Proposal
By Michael Wein
As discussed in numerous prior posts on this blog, DeWolfe’s implementation has been an unexpected headache for the Court of Appeals. The Court held in 2013 that criminal defendants have a constitutional right to counsel at their initial bail determination. Legislation (discussed in my previous post), but nothing passed. It appears, however, that the General Assembly has appropriated $10 million to pay for counsel. I’ve not been involved with this case, but, having worked in Annapolis before law school, I’ll put on my legislative hat to propose a workable solution that would predictably cost under $10 million. To do this, three separate categories are necessary to first examine: (1) Baltimore City; (2) the interim constitutional solution using cost-efficient video conference technology, and (3) the long-term, non-constitutional, legislative solution. Read More…
The Potential After-Effects of DeWolfe’s Implementation – Expanding Maryland v. King to Begin Testing All Arrestee DNA
By Michael Wein
There’s less than two weeks before the Maryland General Assembly adjourns sine die on April 7th. This poses an upcoming deadline for passing legislation complying with the Maryland Court of Appeals’ DeWolfe decision that criminal Defendants have a Constitutional right to representation in their initial bail determinations. The three main proposals are on the table, though a mixture of them is also possible. These proposals are (1) to have comprehensive and supposedly objective Preliminary bail determinations delegated to administrative Pretrial Services employees (that will effectively scrap the current system of review by a neutral magistrate, and thereby no Constitutional violations since no Counsel will be permitted), (2) an expansive and supposedly more expensive representation schema in place that will have full time defense attorneys representing defendants, and additional costs for judges, Court commissioners, courthouse security, etc., and (3) permitted some criminal defendants to affirmatively waive their right to Counsel for an initial appearance in order to get a pre-trial appearance before a Court Commissioner and release. (In the past day, after this was written but before being posted, the Senate Judicial Proceedings Committee favored by a 7-4 vote, Option 1, the Pretrial services approach.) Read More…
Time Is a Flat Circle: More Briefing Ordered in Public Defender Cases
By Steve Klepper (Twitter: @MDAppeal)
Today’s order from the Court of Appeals in Clyburn v. Richmond makes me think of the already-famous line in True Detective: “You’ll do this again. Time is a flat circle.” The Court of Appeals again adhered to its holding that a right exists to counsel at initial appearances, and it ordered another round of briefing and argument. Read More…
Chief Justice Roberts, Civil Litigator at Heart
By Steve Klepper (Twitter: @MDAppeal)
Across the political spectrum of legal blogs, the Supreme Court’s decision in Kaley v. United States has drawn strong criticism, and Chief Justice Roberts’ dissent has drawn strong praise. A sampling of the commentaries appear at the end of this post.
Writing for the 6-to-3 majority, Justice Kagan summarized the Court’s holding as follows:
A federal statute, 21 U. S. C. §853(e), authorizes a court to freeze an indicted defendant’s assets prior to trial if they would be subject to forfeiture upon conviction. In United States v. Monsanto, 491 U. S. 600, 615 (1989), we approved the constitutionality of such an order so long as it is “based on a finding of probable cause to believe that the property will ultimately be proved forfeitable.” And we held that standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer.
In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property. The trial court convened a hearing to consider the seizure’s legality under Monsanto. The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury’s prior determination of probable cause to believe they committed the crimes charged. We hold that they have no right to relitigate that finding.
Chief Justice Roberts, joined by Justices Breyer and Sotomayor, responded: Read More…
Maryland Appellate Blog 