The Appellate Corner
  Howard M. Radzely*

The Supreme Court’s 1997 Term is shaping up to be another excellent year for the states and the federal government in criminal cases. While last term the Supreme Court proceeded cautiously in its criminal procedure rulings, this term began with a bang. The Court made a bold revision to its double jeopardy jurisprudence, overruling what had been seen as a watershed opinion interpreting the Double Jeopardy Clause. This installment of the Appellate Corner focuses on two of the first criminal procedure rulings of the current Term, as well as a rare en banc decision of the Second Circuit.

The Double Jeopardy Clause has proven exceptionally difficult for the Supreme Court to interpret consistently. Indeed, then-Justice Rehnquist was prompted to remark that "the decisional law in the [double jeopardy] area is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator." Albernaz v. United States, 450 U.S. 333 (1981). And, in the early 1990’s, the Supreme Court twice altered the test for what constitutes the "same offense" for double jeopardy purposes in a successive prosecution. United States v. Dixon, 509 U.S. 688 (1993) (overruling Grady v. Corbin, 495 U.S. 508 (1990) (modifying Blockburger v. United States, 284 U.S. 299 (1932))). In its first major criminal procedure ruling of the 1997 Term, the Supreme Court brought some much needed clarity to its double jeopardy jurisprudence.

Hudson v. United States, 118 S. Ct. 488 (1997), presented the question whether the Fifth Amendment prevents the government from criminally prosecuting three individuals for essentially the same conduct which had previously served as the basis for administratively imposed penalties and occupational disbarment. In Hudson, the Office of the Comptroller of the Currency ("OCC") had issued a "Notice of Assessment of Civil Money Penalty" alleging that the petitioners had violated various federal banking statutes and regulations. Although the notice did not allege that the government had suffered any damage as a result of the petitioners’ actions, the OCC assessed penalties of up to $100,000 against each of the petitioners and also sought to bar the petitioners from further participation in the conduct of any insured depository institution. Eventually, each of the petitioners agreed to pay fines of less than $20,000 and to refrain from participating in the affairs of banking institutions without prior written approval of federal officials.

Some three years later, the petitioners were indicted by the federal government based on the same transactions which formed the basis of the OCC’s administrative action. Petitioners moved to dismiss the indictment on Double Jeopardy grounds. The District Court granted the motion to dismiss. The Court of Appeals for the Tenth Circuit reversed, holding, on the basis of United States v. Halper, 490 U.S. 435 (1989), that the fines imposed by the OCC were not so grossly disproportional to the damage to the government to render the sanction "punishment" for purposes of the Double Jeopardy Clause. In Halper, the Court held that whether a sanction constituted "punishment" for double jeopardy purposes depended essentially on whether the sanction "cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as serving either retributive or deterrent purposes." Any sanction "overwhelmingly disproportionate" to the injury to the government was thought to be explainable only as "serving either retributive or deterrent purposes" and thus "punishment" for double jeopardy purposes.

In Hudson the Supreme Court, in an opinion by the Chief Justice, joined by Justices O’Connor, Scalia, Kennedy and Thomas, affirmed, but for entirely different reasons. The majority reasoned that Halper had deviated from the Court’s traditional and long-standing double jeopardy jurisprudence in two critical respects: First, it overlooked the antecedent question of whether the successive punishment was "criminal." Second, the decision required an examination of the "actual" sanction imposed, rather than evaluating the "statute on its face." The Court observed that such an approach required a civil case which followed a criminal prosecution to proceed through trial to judgment in order to evaluate a double jeopardy claim, which "flies in the face" of the Fifth Amendment’s express prohibition against even attempting to impose a successive criminal punishment. The Chief Justice concluded that Halper’s test was "ill considered" and "proved unworkable."

The Court reiterated that whether a punishment is criminal or civil is generally a matter of statutory construction, and that "only the clearest proof" will suffice to override legislative intent and transform a civil penalty into a criminal punishment. In making this latter determination, the Court returned to the seven factor test first enunciated in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), and refined in United States v. Ward, 448 U.S. 242 (1980), and stressed that the statute must be considered only "on its face." Applying this test, the Court determined that the OCC monetary penalties and debarment were not criminal.

Justice Scalia, joined by Justice Thomas, concurred. Echoing his vigorous and well-thought dissent in Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767 (1994), Justice Scalia contended that the Double Jeopardy Clause did not protect against successive punishment, but only prohibits successive prosecution. Justice Scalia joined the majority opinion because, in his view, although the pre-Halper law to which the Court returned "acknowledged a constitutional prohibition of multiple punishments," it "required successive criminal prosecutions."

In a sharply worded opinion concurring in the judgment, Justice Stevens chided the majority for using this case "as a vehicle for the substitution of a rather open-ended attempt to define the concept of punishment for the portions of the opinion in Halper that trouble the Court." Concluding that it would be difficult to think of a double jeopardy case "easier to decide than this one," Justice Stevens would have affirmed the judgment without reaching the Halper issue on the grounds that, under Blockburger’s "same elements" test, the two proceedings at issue in this case were not even arguably for the "same offense." Thus, the subsequent criminal prosecution could not constitute a double jeopardy violation.

In a separate opinion concurring in the judgment, Justice Souter seemingly agreed with the Court’s return to the pre-Halper standards for identifying criminal punishment (although he disagreed with the standard of proof), but nevertheless sided with Justice Stevens that the Court should first apply the "same elements" test. Justice Breyer, joined by Justice Ginsburg, likewise agreed that Halper was (at least in part) ill-considered and that Ward sets forth the proper approach for distinguishing criminal punishments from civil sanctions. However, Justice Breyer concurred only in the judgment because he disagreed with the majority’s holding that "only the clearest proof" could convert a civil remedy into a criminal punishment and that a court should only examine a statute "on its face."

In Buchanan v. Angelone, 118 S. Ct. ___ (Jan. 21, 1998), the Supreme Court considered whether the Eighth Amendment requires that a capital jury be given an instruction on particular statutory mitigating factors or on mitigation in general. In deciding the case, the Court properly avoided the temptation to add to the prolix set of rules which has developed into the Court’s Eighth Amendment capital punishment jurisprudence and did not legislate the specific text of constitutionally permissible capital sentencing jury instructions.

Buchanan was convicted of murdering four members of his family. After two days of testimony concerning the statutory aggravating factor of vileness and mitigating evidence, the trial judge instructed the sentencing jury that it could only sentence the defendant to death if the prosecutor proved beyond a reasonable doubt that the murder was wantonly vile. The court also explained that: "If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt the requirements of the preceding paragraph, then you may fix the punishment of the Defendant at death or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the Defendant at life imprisonment. If the Commonwealth has failed to prove beyond a reasonable doubt the requirements of the second paragraph in this instruction, then you shall fix the punishment of the Defendant at life imprisonment." The trial judge refused the defendant’s request for additional instructions pertaining to mitigation in general and to specific statutory mitigators.

In another opinion written by the Chief Justice, the Court upheld the defendant’s death sentence, thereby rejecting his claim that the Eighth and Fourteenth Amendments require the court specifically to instruct the jury on particular statutory mitigators and on mitigation in general. The Court explained that the defendant had failed to distinguish between the "eligibility phase" of capital sentencing—where the Court has stressed the need for limiting the jury’s discretion—and the "selection phase"—where the Court has stressed the need for a wide-ranging investigation into all relevant mitigating evidence. While in the "selection phase" a sentencer must be permitted to consider all "constitutionally relevant mitigating evidence," the Court observed that the Eighth Amendment does not require the state to instruct the jury on any particular means of considering that evidence, and even permits "complete jury discretion." The Chief Justice had little difficulty concluding that the instructions given to Buchanan’s jury permitted them to give full effect to the evidence in mitigation.

Justice Scalia concurred, restating his view that the Eighth Amendment does not require juries to consider mitigating evidence at all and that the line between the "eligibility and selection phases" is "incoherent and ultimately doomed to failure." Justice Breyer, joined by Justices Stevens and Ginsburg, dissented, reasoning primarily that there was a "reasonable likelihood" that the jury misunderstood the above-quoted jury instruction. According to Justice Breyer, a jury might well have believed that the sole determinant of their sentence was whether the State proved the aggravator and that "the extensive evidence that the defendant presented in mitigation" could not be considered in rendering their sentence, despite the fact that, among other things, the verdict form stated that the jurors "considered the evidence in mitigation of the offense." The majority briefly responded to the dissent in a footnote, explaining that the dissent’s strained reading was simply inconsistent with the ordinary meaning and structure of the jury instruction.

One brief note about the recent Second Circuit en banc decision in Ayala v. Speckard, 131 F.3d 62 (1997), and two other consolidated cases. The court, in an opinion written by Judge Newman and joined by the Chief Judge and six other judges, reversed three panel opinions granting writs of habeas corpus. The en banc court held that the Sixth Amendment’s public trial guarantee does not require a trial judge sua sponte to consider alternatives to closure of the courtroom during the testimony of one witness (in each case an undercover police officer posing as a drug user) and that the prosecution in each case had established sufficient justification to overcome the defendant’s right to a public trial. The majority concluded that Supreme Court precedent at most (if at all) requires a trial judge sua sponte to consider alternatives to complete closure of a hearing or criminal trial. The majority also observed that no court prior to the three panel opinions had ever reversed a conviction because a trial judge had failed to consider an alternative to closure which had not been advanced by the defendant, noting that "reversal of a criminal conviction for a trial judge’s failure to consider an alternative not requested by a defendant is arguably too high a price to pay to protect that right." Judge Parker, joined by two judges, dissented, contending that the Sixth Amendment required the trial court sua sponte to consider alternatives to closure of the courtroom for even one witness.

This decision is noteworthy for at least three reasons. First, the en banc decision resolved a split between the Second Circuit and the New York Court of Appeals, which had earlier ruled that the Sixth Amendment does not require a trial judge sua sponte to consider alternatives before closing the courtroom for a limited portion of a trial. Second, the Second Circuit now properly places the onus on the defendant to suggest alternatives to partial closure, and prevents the defendant from manipulating the system by not suggesting alternatives at trial, but saving them for use on direct and collateral appeal. Third, and somewhat disturbingly for advocates of federalism, the Second Circuit, in reaching the merits of defendants’ arguments, manipulated the "new rule" doctrine, which generally prohibits federal courts from considering the merits of a defendant’s constitutional claims in a habeas proceeding if the rule requested by the defendant was not "dictated by precedent existing at the time the defendant’s conviction became final." Teague v. Lane, 489 U.S. 288 (1989). As the majority recognized, a federal habeas court normally must consider and reject the State’s argument that the requested rule is "new" before proceeding to address the merits of a defendant’s claim. However, in Ayala, the Second Circuit reached the merits by carving out a novel exception to the new rule doctrine, because of what the majority termed "special circumstances": the "considerable uncertainty" resulting from the panel decisions if the merits were not addressed; and the tension between the panel opinions and the recent New York Court of Appeals decision on the identical issue. As Judge Walker explained in an opinion concurring in the judgment, this analysis seems highly dubious. (Judge Walker did not reach the merits of defendants’ Sixth Amendment claims, but would have vacated the panel opinions and upheld the convictions because the proposed rule was "new.") In Caspari v. Bohlen, 510 U.S. 383 (1994), the Supreme Court clearly held that "if the State does argue that the defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague before considering the merits of the claim."

*Howard M. Radzely clerked for Justice Antonin Scalia and Judge J. Michael Luttig of the Fourth Circuit. The views expressed are solely those of Mr. Radzely.


2001 The Federalist Society