There is a major religion case and an interesting criminal procedure case tomorrow, and a death penalty case on Monday. Otherwise, this and next week are mostly taken up with cases that involve hard-to-follow matters of procedure and specialized areas of law, so with the exception of the cases below, this is generally not the best month for the casual observer.
Wednesday, April 19
The competing religion clauses are once again up for examination and attempt at reconciliation in the first case this morning, Trinity Lutheran v. Comer. The First Amendment prohibits laws “respecting an establishment of religion, or prohibiting the free exercise thereof.” In order to avoid violating the first clause, Missouri prohibits public money from being disbursed “directly or indirectly in aid of any church, sect, or denomination of religion.” In this case, that meant a church-owned playground could not be reimbursed for refurbishing its playground with a rubber surface made from recycled tires under a program that is available to non-religious nonprofit organizations. The church sued, claiming this effort to comply with the first religion clause violates the second religion clause, by singling out churches for less favorable treatment compared with all other nonprofits. There is a web of not-always-consistent legal doctrines and tests for the constitutionality of regulations that impact religion, developed in the Supreme Court over the past several decades. Intriguingly, the state is emphasizing the text of the Constitution, noting that refusing to give money for a playground renovation in no way prohibits exercise of religion. The argument is even more intriguing given that the briefing predated the nomination of the textualist, but generally pro-religion, now-Justice Gorsuch. A full overview of the case and arguments is available here.
The second case today involves appellate review of “errors” in a criminal trial. Some types of error require a showing of prejudice — to get a new trial, it’s not enough that the trial judge did the wrong thing, the defendant has to show that the error likely impacted the outcome of the trial. Other types of errors are “structural,” undermining the integrity of the proceedings as a whole, and are deemed always and necessarily prejudicial. In Weaver v. Massachusetts, the judge closed the courtroom during jury selection, denying entry to the defendant’s mother and others. By all accounts, this was simply because so many potential jurors were called, in an effort to find enough impartial jurors, that the room was full (although some potential jurors could simply have been told to wait outside). Nevertheless, it is fundamental that the Constitution requires public trials (except under very unusual circumstances) and this was structural error, requiring no special showing of prejudice to warrant reversal and a new trial. But the defendant’s lawyer failed to object to the closing of the courtroom, and ineffective assistance of counsel is a type of error that requires a showing of prejudice. So which rule applies, and does the defendant need to show prejudice in order to get a new trial?
Monday, April 24
First up is a death penalty case involving the right to independent psychological experts. In McWilliams v. Dunn, the judge ordered psychological examination of the defendant, which was first conducted by a Department of Corrections doctor who recommended evaluation by an independent expert. The report by an independent expert was not delivered until the day before sentencing, and the judge denied a request for time for the defense counsel to review the report with an expert. The Court has granted cert on the question of whether this violates the right (declared in other cases) to “meaningful expert assistance.”
The second case today is a complex issue involving the right to effective assistance of counsel. The Court has held that the constitutional right to counsel requires effective assistance at trial and on direct appeals, but not during discretionary or collateral post-conviction proceedings (like requests to reduce the sentence for reasons other than legal error at trial). However, some states require ineffective assistance claims to be raised in collateral proceedings, and difficult issues arise when claims are “nested” among actions by counsel in various proceedings. It’s a complex area of criminal appellate law, and the argument will not be easy to follow for the casual observer. If you plan to attend, start here and follow the links.
[April 25 & 26: Tuesday cases and the first cases on Wednesday involve technical FDA and civil procedure cases, which I wouldn’t recommend for a casual observer. The second hour on Wednesday involves denaturalization so may be of some interest, although it too is a relatively technical issue.]