The Supreme Court of the United States Is More Likely to Overturn a Ninth Circuit Decision Than Other Circuits'

Savvy appellate lawyers know that final courts like the Supreme Court of the United States and the Supreme Court of Texas and the Court of Criminal Appeals of Texas have some intermediate appellate courts that they are more willing to reverse than others. For the Supreme Court of the United States, the Ninth Circuit is the intermediate court they are most likely to reverse. Ninth Circuit parties unhappy with the result in their cases, especially those whose result would be unpleasing to the Chief Justice and Justices Scalia, Kennedy, Thomas, and Alito have a better chance of getting relief than unhappy people from other courts of appeal.
The post explaining why this is not very important as to SCOTUS is the post just before this one.

Generally, Don't Take Your Case to the United States Supreme Court Unless You Have To

7,738 cases were filed in the Supreme Court of the United States in their 2008 term, which begins in October of that year. Out of those, the Court held argument on 87. Of those, they disposed of 83. 74 of those dispositions were by signed opinions, including per curiam opinions signed by no individual justice, and the judgments in cases where the trial is in the Supreme Court. Cases the Supreme Court disposes of may be either affirmed or reversed. That is, a party could go through the whole laboriousness and expense of getting a case into SCOTUS, getting it briefed, arguing it and ending up with an affirmance making the ruling against the party in the party's case the law of United States of America.
So, if you or your client have the expectation that the Supremes are going to right the wrong in your United States Circuit or highest state court case, that expectation is practically always misplaced. Petitions for certiorari to the U.S. Supreme Court should practically always be reserved for situations in which the judgment and law of the case is utterly intolerable for your client or in which delay of finality of the ruling complained of is in your client's interest.
I'm speaking here of a necessary but not sufficient condition for advising a petition for cert. That is, advice to prepare and file a cert. petition should only be given when the legal and factual grounds exist. I hope to write more about those legal grounds in later blog posts. Be aware, and make sure that your client is aware, that more than 98 out of every 100 filings are never taken up at all.

It'll Likely Be a Good Complaint Some Day, But No Time Soon

Fifth Circuit Judge Fortunado P. Benevides, writing for a panel including Carl E. Stewart and Leslie Southwick, reinforced the circuit's view that a district court may
impose a federal sentence that runs consecutively to an undischarged state
sentence. The Eighth, Tenth and Eleventh Circuits agree with the Fives. The government, along with the Second, Fourth, Sixth, Seventh, and Ninth Circuits, take the opposite side. Last year Fifth Circuit Judges Priscilla Owen and James L. Dennis even indicated that they didn't like the ruling. A circuit split like this may well interest the Supreme Court of the United States.

Unfair to Staten Island

If Elena Kagan is confirmed, she will be the Supreme Court justice from Manhattan. Antonin Scalia is from Queens. Ruth Bader Ginsberg is from Brooklyn. Sonia Sotomayor is from The Bronx. This is unfair to Staten Island.
Hat tip to Jonathan H. Adler of The Volokh Conspiracy.

SCOTUS Nomination Diversity

The president has not nominated anyone to the Supreme Court of the United States who was not an Ivy League female, unmarried and childless, from New York City, New York, who studied in Princeton's history department.
Hat tip to Mises Economics Blog.

Defendant Held to Have Opened the Door for State’s Plea-Bargain-Discussion Question

The Texas Court of Criminal Appeals overturned a decision of Amarillo's Seventh Court of Appeals. Amarillo reversed and remanded defendant Troy A. Bowley's felony Driving While Intoxicated conviction. Amarillo did it because trial judge Cecil G. Puryear did not grant Bowley's motion for a jury instruction to disregard a State's question about plea-bargain-discussions.

Bowley admitted that he was guilty in his prior cases. He said that he had pleaded not guilty in the case he was being tried for because he was, in fact, not guilty. The State asked on cross-examination: "Could it be that it's because we couldn't agree on a plea agreement that you preferred?" The defense objected. The court sustained. The defense then asked for a jury instruction to disregard the improper question. The trial court denied.

Amarillo disagreed. The CCA held that any harm was Bowley's fault. He'd opened the door about why he'd made the prior pleas.

Judge Michael E. Keasler wrote the majority opinion. Other majority judges were Presiding Judge Sharon Keller and Judges Paul Womack, Barbara Parker Hervey and Cathy Cochran.

Judge Tom Price wrote a dissent that Judges Laurence E. Meyers, Cheryl Johnson and Charles R. Holcombe joined. It said that the trial judge sustained Bowley's general objection without indicating what his legal basis was. Bowley's brief assumed that his objection was on Texas Rule of Evidence 410(4). Even though the objectionable question would not have elicited a particular statement of his, it would have told the jury that he had been involved in plea negotiations. Amarillo didn't consider this issue. It had said that the question might have been proper under TRE 403. Price didn't think that was the right issue, though he couldn't tell from the record. If the issue had been 403, and that ruling was right, 410(4) would have required reversal and remand to Amarillo instead of rendition.

Judge Holcombe filed a dissent joined by Judges Meyers, Price and Johnson. It said the State's question was objectionable even if Bowley had opened the door. Rule 410 would have trumped Rule 403.

Additionally, Judge Johnson wrote an additional lone dissent. She would have held that the State's use of prior DWIs here conflicted with
Phifer v. State, 787 S.W.2d 395 (Tex. Crim. App. 1990). She said Penal Code § 49.09(g) "may be a validation of Phifer (emphasis mine)." Furthermore, Phillips v. State, 992 S.W.2d 491 (Tex. Crim. App. 1999) "did not overrule Phifer." Judge Johnson is the only lawyer I know or have heard of who does not believe that § 49.09(g) is the legislature's overruling of Phifer. And that Phillips proves that.

    Bowley's lawyer preserved this point properly. (From time to time the CCA has required defense counsel to make very detailed objections so as to put appeals courts on notice of the exact objection. If Bowley's lawyer had said, "Your honor, objection, statement made in the course of plea discussions," Bowley would have been no better off.) To preserve an evidence issue, one must:

• object to the evidence.
  
• If the trial judge sustains your objection, then ask for an instruction for the jury to disregard.
  
• If that instruction is given, move for a mistrial.
  

Ambitious defense lawyers will likely use Judge Johnson's dissent as the basis for a motion to quash, arguing that the only reason it didn't fly in Bowley was that Bowley had not properly preserved the error. Careful trial judges will learn from Judge Puryear to grant defendants their motions to disregard to save the system from a world of headaches even though they will likely be vindicated in the end. Were I prosecuting such a case, I would be inclined to:

• ask a group of questions confirming that there was one bad piece of evidence after another in the oldest case,
  
• then confirming that the defendant took a plea in the case,
  
• confirm the punishment, and
  
• repeat for each prior case.
  
• Lastly, I would go through each of the damning pieces of evidence in the trial case, then ask, "You've decided to go for a jury in this case, huh?"
  

 

Supreme Court of Texas Amends Electronic Document Order

Here is the Amendment. The amendment emphasizes the number of paper documents that must still be filed in a SCOTX case. It requires that attorneys in a SCOTX case must give each other their email addresses and must register for Casemail about their case. Such attorneys must email opposing counsel their edocs. Thanks to D. Todd Smith of Texas Appellate Law Blog for the update.