Kent Sheidegger *
In the first half of its 1999-2000 term, the Supreme Court has
decided its "appeal trilogy," ruled on unprovoked flight
as cause for Terry stops, clarified a point on jury challenges,
and taken some hot issues for the end of the term. The high court
also handed us a chilling reminder of how precariously it is balanced
at present. This article will review these developments and note
a few cases of interest from other courts.
Three California defendants presented the Court with issues on
the minimum standards for processing appeals. They might be called
the no issues case, the no lawyer case and the no appeal case.
On January 19, the Court decided Smith v. Robbins, No. 98-1037.
In Anders v. California, 386 U.S. 738 (1967), the Court had held
that appointed counsel could not simply file a letter stating that
the appeal had no merit, and it laid out an acceptable procedure.
California adopted a different procedure in People v. Wende, 28
Cal. 3d 436, 600 P. 2d 1071 (1979), which has been used ever since.
Under Wende, appointed counsel who concludes there are no nonfrivolous
issues summarizes the case, explains his evaluation to the client,
advises him he can file a pro se brief, and asks the court to examine
the record itself. Counsel remains available to brief any issues
the court of appeal finds are arguable. Unlike Anders, counsel under
Wende does not spot issues which he has recognized but deems frivolous.
Some defense lawyers have severely criticized Anders on this point
as creating an ethical dilemma, requiring counsel to argue that
his client's claim is frivolous.
The Ninth Circuit held that Wende did not comply with Anders. The
Supreme Court reversed by a 5-4 vote. Justice Thomas's majority
opinion emphasizes the federalist principle that federal courts
have no authority to impose their policy preference on state courts
but can only enforce constitutional minimums.
While Robbins complained of not enough representation, another
defendant complained of too much. On January 12, in Martinez v.
Court of Appeal, No. 98-7809, the Court declined to extend the Faretta
right of self-representation to appeals. Unlike the narrow and contentious
split in Robbins, there was no dissent in Martinez. Along the way,
the Court confirmed that the Sixth Amendment, on which Faretta is
based, is simply inapplicable to appeals. The Court's extension
of representation rights to indigent defendants was derived from
the Equal Protection and Due Process Clauses.
The final chapter was decided February 23 in Roe v. Flores-Ortega.
In this case, trial counsel decided not to file an appeal following
the defendant's guilty plea. She concluded there were no appealable
issues, which is often the case, because the plea waives most issues.
The defendant had neither expressly requested nor expressly waived
an appeal. The Ninth Circuit held that this was ineffective assistance
of counsel without a showing of prejudice. Strickland v. Washington,
466 U.S. 668 (1984) generally requires a showing of a reasonable
probability that the challenged performance made a difference in
the result, but the Ninth Circuit thought this was one of the exceptions.
The Supreme Court vacated and remanded in an opinion that rejected
bright lines and called for case-specific inquiries. Absent specific
instructions from the defendant, a court must ask whether counsel
had a duty to consult with the defendant about appeal, which arises
if there are nonfrivolous issues to appeal or if the defendant had
previously indicated an interest in appealing. For the prejudice
prong of Strickland, the defendant must show a reasonable probability
that but for counsel's failure to consult, he would have appealed.
In one small victory for defendants, the Court declined to require
a showing of arguable issues as an essential element of the claim.
However, the presence or absence of such issues will have a bearing
on both the deficient performance and prejudice prongs.
For trial counsel, the practical message of this muddled test is
nonetheless clear. Always expressly ask the defendant if he wants
to appeal. A simple question, a simple answer, and a note in the
file will avoid much murky litigation down the road.
The Challenge Dilemma
The case on jury challenges unfortunately provides no such clear
message for trial counsel. What do you do when you challenge a juror
for cause, and the trial judge denies it, erroneously in your opinion?
In United States v. Martinez-Salazar, No. 98-1255, decided January
19, the Court effectively held that using a peremptory challenge
makes the challenge-for-cause ruling unreviewable. This is so even
if the defendant used all of his peremptory challenges. The choice
is between (1) going to trial with a biased juror and hoping for
a successful appeal, or (2) using a peremptory one should not have
needed to use. "A hard choice is not the same as no choice,"
Justice Ginsburg says in the opinion of the Court. There was no
dissent on the main point of the case.
In his last major criminal procedure opinion, Chief Justice Earl
Warren wrote for the Court in Terry v. Ohio, 392 U.S. 1 (1968) that
police could briefly stop and question people on a "reasonable
suspicion" of criminal activity, much less than the "probable
cause" required for arrest. Is the act of headlong flight at
the sight of police suspicious enough to justify a "Terry stop"?
The Court held it was in a 5-4 opinion in Illinois v. Wardlow, No.
98-1036 (Jan. 12, 2000), at least when this occurs in a "high
crime" area. The Court acknowledged that running away could
have an innocent explanation, but that is generally true of the
suspicious, but possibly innocent, behavior in Terry itself and
other cases upholding such stops.
While the Court did not draw a bright line at flight alone, one
may well ask whether the high-crime area makes a difference. Is
headlong flight at the sight of police any less suspicious on Rodeo
A Chilling Reminder
The most surprising case so far in the term is Weeks v. Angelone,
No. 99-5746, decided January 19. The case is not surprising for
its outcome, but for the fact it was close.
Weeks admittedly shot and killed a state trooper during a seemingly
routine traffic stop, without any semblance of justification. At
the penalty phase, the judge gave the standard state instruction,
subsequently upheld as correct in Buchanan v. Angelone, 522 U.S.
269 (1998). A jury question indicated some confusion, and the judge
answered the question by referring the jury to the specific paragraph
of the specific instruction that correctly answered it. There is
a small mountain of authority from courts across the country that
such a response is within the court's discretion.
Between the abundant authority and the new statutory requirement
that only clearly wrong decisions warrant habeas relief, this case
should have been 9-0 for affirmance. The fact that four Justices
voted to reverse is a chilling reminder of how precarious the balance
is on the Supreme Court today. It seems we are one step away from
a return to the days, when long-established procedures were routinely
overturned, requiring retrial or release of thousands of clearly
A Blazing Finish
The Supreme Court has accepted one other hot-button issue for argument
near the end of the term, guaranteeing controversy when it wraps
up in June.
In Dickerson v. United States, No. 99-5525, the Court will finally
address the 1968 statute by which Congress attempted to replace
the Miranda rule and its mandatory conclusive presumption of coercion
with a totality of the circumstances test. The Solicitor General
normally defends the constitutionality of Acts of Congress if any
respectable argument can be made, but in Dickerson that office has
effectively joined the defendant and argued that the statute is
unconstitutional. The task of defending it falls to amici curiae.
Other Cases of Note
State courts and the federal circuits have, of course, decided
cases of interest in the past few months. Here, briefly, are some
of the more interesting ones.
Dissociative identity disorder, formerly multiple personality disorder,
was held legally irrelevant to sanity in State v. Green, 984 P.
2d 1024 (Wash. Sept. 30, 1999). Although the disorder is "generally
accepted" for the Frye test, there is no scientific consensus
on how to relate it to legal sanity. This case suggests an intriguing
approach for combating psychobabble defenses.
The use of propensity evidence for sex-crime prosecutions survived
a constitutional challenge in People v. Falsetta, 21 Cal. 4th 903
(Nov. 1, 1999). A number of jurisdictions have waived the character
evidence rule for sex-crime cases in recent years. See, e.g., Fed.
R. Evid. 413 (enacted 1994).
Admitting the defendant's guilt without his consent is ineffective
assistance without a showing of prejudice, even if the evidence
is overwhelming and the concession is part of a strategy to avoid
the death penalty. The Florida Supreme Court so held in Nixon v.
Singletary, No. SC 93192 (Jan. 27, 2000).
Police can be sued for not observing the Miranda requirement to
cease questioning upon the suspect's invocation of his right to
counsel, the Ninth Circuit held in Cal. Attys. for Crim. Justice
v. Butts, 195 F. 3d 1039 (Nov. 8, 1999). The court was unimpressed
with the argument that Miranda was a rule of evidence governing
admissibility of confessions, not a constitutional mandate governing
police conduct. The issue may require reconsideration after the
Supreme Court decides Dickerson.
A habeas corpus case is commenced when the petitioner files a petition,
not when he asks for counsel, everywhere except the Ninth Circuit.
The Tenth Circuit joined the others in Moore v. Gibson, 195 F. 3d
1152 (Sept. 28, 1999). The date matters for statute of limitation
purposes as well as the applicability of the Antiterrorism and Effective
Death Penalty Act of 1996. The Ninth Circuit's unique interpretation
in Calderon v. U.S. District Court, 163 F. 3d 530 (1999) continues
to stand alone. The Ninth Circuit also decided that, despite the
huge sums California spends on defense counsel, it is still not
good enough to qualify for the "fast track" procedures
established by the AEDPA as the quid pro quo for providing state
habeas counsel. Ashmus v. Woodford, No. 99-99007 (Jan. 24, 2000).
Finally from California, the issue of race-based peremptory challenges
arises again. Thirty-two years ago, eight years before Batson v.
Kentucky, 476 U.S. 79 (1986), California led the nation in banning
such use of the peremptory challenge in People v. Wheeler, 583 P.
2d 748 (Cal. 1978). But no good deed goes unpunished. The Ninth
Circuit decided in Wade v. Terhune, No. 98-16720 (Feb. 2, 2000)
that Wheeler's test for whether a prima facie case of discrimination
has been made, so as to require an explanation of race-neutral reasons
for the challenge, presents too high a hurdle for the defendant.
Watch for Supreme Court review of this issue.
* Kent Scheidegger is Legal Director of the Criminal Justice Legal
Foundation and Vice-Chairman for e-communications of the Federalist
Society Criminal Law and Procedure Practice Group. Address suggestions
and comments to email@example.com. CJLF's amicus briefs in many of the
cases discussed in this article can be viewed at www.cjlf.org.