Vol. 12, No. 22	Covering Cases Published in the Advance Sheets through May 30, 2005

Booker

• The number of new Booker-related decisions continues to dominate the dockets of the Federal courts. Last week the courts produced another of 138 new Booker decisions (both published and unpublished) - raising the total since January 12, 2005 to 1727.

  The big news for the week was the Supreme Court’s refusal to grant certiorari in the Eleventh Circuit’s decision in U.S. v. Rodriguez. The Court’s unexplained decision means that the deep Circuit split that has developed over when an unpreserved Booker error constitutes “plain error” that warrants a remand for resentencing will continue unresolved; and it virtually assures that defendants will receive unequal justice in the wake of Booker depending on the Circuits in which their appeals are heard.

Supreme Court

• The Supreme Court has issued two new opinions expounding on its 1986 ruling in Batson v. Kentucky which held that, when the prosecution bases peremptory challenges on race, those challenges violate the constitutional rights of both the prospective jurors and the defendant. In the much litigated Miller-El case, the Supreme Court, by a 6-to-3 vote, issued a strong ruling in favor of a Texas death row inmate for the second time, holding this time that the jury selection process used at his 1986 murder was “replete with evidence that the prosecutors were selecting and rejecting potential jurors because of race” in violation of the rule established in Batson.
  
  
• In Johnson, over the lone dissent of Justice Thomas, the Supreme Court held that the burden of proof required by the California state courts to establish a prima facie case of bias under Batson was too burdensome and at odds with the inquiry mandated by Batson.
  
  
• The Austin case represents a rare, albeit somewhat cursory, judicial look at some of the severe conditions in the nation’s “super-max” prisons that are now operated by the Federal Government and some 30 states. Here, a unanimous Supreme Court held that the conditions in such prisons are so much more restrictive than any other form of incarceration that inmates facing placement in such prisons have a constitutionally protected liberty interest in avoiding such an assignment. However, the Court also went on to hold that the placement procedures utilized by the state of Ohio satisfied the due process concerns of the affected prisoners.
  

Court Blasts AUSA's "Arbitrary" Use of Its Veto Power To Block Conditional Plea Agreements

• In Delgado, the outspoken Judge Presnell of the M.D.Fla. questioned the good faith of the AUSA in automatically rejecting a conditional guilty plea on the grounds that “my office won’t accept a conditional plea.” After noting that such pleas are expressly authorized by the Fed.R.Crim.P., Judge Presnell said his only option was to “engage in the charade of a bench trial” during which he presumably would take into account the Government’s “arbitrary” use of its “veto power.”

U.S. v. Booker - Update

One of the most useful of the many Booker-related resources that are available on the Internet are the two companion surveys prepared by Frances H. Pratt, Esq. of the Office of the Federal Public Defender, Alexandria, VA. Ms. Pratt has recently revised and updated her previous summary outline of significant Booker cases by creating two separate documents - namely "Sentences After Booker: Imposition and Review," a 58-page survey of the major Booker decisions involving sentences imposed after January 12, 2005; and "Review of Sentences Imposed Before Booker," a 78-page survey of the major decisions interpreting and applying Booker to sentences imposed before January 12, 2005. Together, these two documents offer one of the best means of keeping track of the huge volume of Booker cases reported through June 5, 2005; and, for the convenience of our subscribers, we have posted copies of both surveys on our Website at www.ussguide.com/members/BulletinBoard/Booker/index.cfm/.

Clearly, the most significant of the week’s Booker developments was the Supreme Court’s refusal to grant a Petition for a Writ of Certiorari in U.S. v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005), where the Eleventh Circuit had adopted one of the harshest and most unforgiving standards for determining when a defendant is entitled to a remand for a resentencing based on a Booker error. Essentially, the Eleventh Circuit held that the defendant in that case failed the plain-error test because he could not show that his substantial rights were affected by the Booker error at issue. The panel did not suggest that Rodriguez's substantial rights were not affected; rather, it rejected his claim because it just didn’t know what sentence he would have received if the district court had treated the Guidelines as advisory only, as now required by Booker.

That ruling is at odds with a number of different approaches taken by the other Circuits; and the Eleventh Circuit’s unusually harsh position has led to a lot of criticism, one of the most notable of which was Judge Posner’s comments in U.S. v. Paladino, 401 F.3d 471 (7th Cir. Feb. 25, 2005), where he accused the Eleventh Circuit of being stuck in an "epistemic fog" and he commented "we cannot fathom why the Eleventh Circuit wants to condemn some unknown fraction of criminal defendants to serve an illegal sentence."

In February, 2005, Rodriguez asked the Supreme Court to overturn the Eleventh Circuit’s ruling, arguing on part that Booker had created great disarray among the Circuits as to the correct “plain error” standard of review that had developed. In May, Solicitor General for the United States filed a brief supporting Supreme Court review of Rodriguez. While the Solicitor General argued that Rodriguez had been correctly decided, it urged the Supreme Court to intervene because a “clear and deep multi-Circuit conflict” had developed over the proper analysis of plain Booker error.

Then, shortly before the Supreme Court acted on that Petition, the Solicitor General filed a second Petition for a Writ of Certiorari relating to plain Booker error, this time using the Sixth Circuit’s decision in U.S. v. Barnett, 398 F.3d 516 (6th Cir. 2005) as the basis for his appeal. The fundamental difference between the two cases is that Rodriguez involved a constitutional Booker error; while Barnett involved a non-constitutional sentencing error.

In its Petition in the Barnett case, the Solicitor General argued: “While some courts of appeals have drawn a distinction in the plain-error analysis to be applied to constitutional and nonconstitutional Booker error, . . . the two scenarios involve fundamentally similar considerations, and this Court’s disposition of Rodriguez is thus likely to affect the correct resolution of this case. Accordingly, the petition for a writ of certiorari should be held pending the Court’s disposition of Rodriguez.”

Finally, on June 20, 2005, the Supreme Court declined, without any comment, to grant the Petition in the Rodriguez case. While it is difficult, at best, to guess why the Supreme Court refused to intervene and resolve the wide Circuit split that has developed on this Booker plain error issue, one renowned Booker authority, Professor Douglas Berman, speculated about the Supreme Court’s decision as follows:

“Even if the Supreme Court had granted cert. today, we would likely not have a decision until well into 2006; by then, the number of ‘live’ Booker plain error cases might be quite small. And . . . the Supreme Court has no shortage of other critical Blakely/Booker issues to address that are of much greater long-term importance to state and federal sentencing systems (e.g., the status and scope of the prior conviction exception, Booker and Blakely and Apprendi retroactivity, Blakely's applicability to judicial determinations of non-prison sentences or consecutive sentences).”

Miller-El v. Dretke, No. 03-9659 (U.S. Sup. Ct. June 13, 2005) (Justice Souter)

In 1986, the Supreme Court issued its landmark ruling in Batson v. Kentucky, 476 U.S. 79 (1986), relating to the use of peremptory challenges for discriminatory purposes. In that case the Court held that when a prosecutor bases peremptory challenges on race, even in just one case, those challenges violate the constitutional rights of both the prospective jurors and the defendant. Thus, in Batson and subsequent cases, the Court developed a three step burden-shifting rule designed to ferret out the unconstitutional use of race in jury selection.

First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” (Batson, id., at 93-94). Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. (Batson, id., at 94). Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide … whether the opponent of the strike has proved purposeful racial discrimination.” (Purkett v. Elem, 514 U.S. 765, 767 (1995)).

Proving a discriminatory purpose under Batson can be extremely difficult, in part because, in Purkett, the Court concluded that the prosecutor’s burden at the second step is not very great. In fact, the majority stated: "[The prosecutor’s burden] does not demand an explanation that is persuasive, or even plausible." (Purkett, id., at 768).

That ruling brought cries of outrage from an incredulous Justice Stevens who wrote: "Today, without argument, the Court replaces the Batson standard with the surprising announcement that any neutral explanation, no matter how 'implausible or fantastic,' even if it is 'silly or superstitious,' is sufficient to rebut a prima facie case of discrimination." (Purkett, id., at 775).

The instant case is a good example of some of the difficulties of proving a Batson violation. The petitioner, Thomas Miller-El, an African-American, was convicted of murdering a hotel clerk during a robbery that took place in Dallas, TX in 1985. During jury selection, the prosecution excluded ten of eleven African-Americans who were eligible to serve on the jury through the use of peremptory challenges. Once voir dire had been completed, Miller-El moved to strike the jury, arguing that the prosecution had violated his constitutional rights by excluding those African-Americans. Miller-El’s challenge was rejected and he was ultimately convicted and sentenced to death. While his appeal was pending, the Supreme Court issued its opinion in Batson.

Over the next 20 years, Miller-El engaged in a series of protracted and largely fruitless appeals that resulted in at least eight different judicial proceedings and produced eight different judicial opinions, involving 23 judges, of whom 6 found the Batson standard had been violated and 16 found to the contrary.

In fact, this is the second time that Miller-El’s case has been before the Supreme Court. In Miller-El v. Cockrell, 537 U.S. 322 (2003) (Miller-El I), the Court had its first look at his claims of purposeful discrimination; and it concluded that, based on a “threshold examination” of the record, it appeared that the merit’s of Miller-El’s Batson claim was at least debatable by jurists of reason; and it therefore remanded the case back to the Fifth Circuit to determine whether Miller-El could "demonstrate that [the] state court's finding of the absence of purposeful discrimination was incorrect by clear and convincing evidence, and that the corresponding factual determination was 'objectively unreasonable' in light of the record before the court."

On remand, the Fifth Circuit addressed the merits of Miller-El’s jury selection claim and, in a decision reported at Miller-El v. Dretke, 361 F.3d 849 (5th Cir. 2004) (Miller-El II), it affirmed the decision of the district court in its denial of habeas relief to Miller-El on the ground that he had failed to show by clear and convincing evidence that the state court erred in finding no purposeful discrimination.

Once again, Miller-El appealed to the Supreme Court; and this time the Court was far more decisive and emphatic in its ruling. By a vote of 6-to-3, the Court vacated Miller-El’s conviction and directed that he receive a new trial. Writing for the majority, Justice Souter was highly critical of the Fifth Circuit’s “unsupportable” conclusions. He said that the prosecution’s explanation for excluding blacks from Miller-El’s jury “reeks of afterthought” and that some of the questions used by the prosecutors to weed out prospective black jurors “might fairly be called trickery.” Indeed, the majority found that the jury selection process early in 1986 was “replete with evidence that the prosecutors were selecting and rejecting potential jurors because of race.”

The decision appears to send a message that the Supreme Court is no longer willing to let prosecutors use vague excuses to justify the intentional exclusion of jurors based on race; and it certainly sends a message to trial and appellate judges that they must be more attentive to allegations of racial discrimination in the jury selection process and that they must take more aggressive steps to investigate bias allegations.

In a dissenting opinion that was joined by Justices Rehnquist and Scalia, Justice Thomas argued that Miller-El “has not even come close” to making the required showing of purposeful discrimination; and he concluded that there were numerous nonracial explanations for the peremptory challenges used in this case that were “eminently reasonable.”

As a matter of interest, in a separate concurring opinion, Justice Breyer again repeated a suggestion he made in Miller-El I that the time may have come to eliminate peremptory challenges in their entirety because it has proved so difficult to filter racial bias from their use. While he recognized that peremptory challenges have “a long historical pedigree,” he also stated that “the right to a jury free of discriminatory taint is constitutionally protected [whereas] the right to use peremptory challenges is not.”

Wilkinson v. Austin, No. 04-495 (U.S. Sup. Ct. June 13, 2005) (Justice Kennedy)

Americans who have been shocked by the harsh conditions of confinement accorded to foreign detainees at places like Abu Ghraib and Guantanamo Bay would do well to read this decision. It describes some of the standard and generally accepted conditions that exist in America’s “super-max” prisons - a new type of prison created in the past 20 years “in part,” according to Justice Kennedy’s pregnant and incomplete statement, “as a response to the rise in prison gangs and prison violence.” (Emphasis added).

It’s not surprising that there are so few decisions delving into these super-max facilities. Just as politicians have become uncomfortable dealing with the now well-documented abuses at places like Abu Ghraib, the judges would prefer not to deal with any embarrassing conditions that exist in American prisons. And for good reason. Even reading Justice Kennedy’s deliberately brief and cautiously phrased description of the life and routine at Ohio’s super-max facility, the Ohio State Penitentiary (“OSP”), it is hard not to conclude that such conditions are per se inhumane and barbaric. Gingerly, he wrote:

“Conditions at OSP are more restrictive than any other form of incarceration in Ohio, including conditions on its death row or in its administrative control units. The latter are themselves a highly restrictive form of solitary confinement. . . . In the OSP almost every aspect of an inmate’s life is controlled and monitored. Inmates must remain in their cells, which measure 7 by 14 feet, for 23 hours per day. A light remains on in the cell at all times, though it is sometimes dimmed, and an inmate who attempts to shield the light to sleep is subject to further discipline. During the one hour per day that an inmate may leave his cell, access is limited to one of two indoor recreation cells.

“Incarceration at OSP is synonymous with extreme isolation. In contrast to any other Ohio prison, including any segregation unit, OSP cells have solid metal doors with metal strips along their sides and bottoms which prevent conversation or communication with other inmates. All meals are taken alone in the inmate’s cell instead of in a common eating area. Opportunities for visitation are rare and in all events are conducted through glass walls. It is fair to say OSP inmates are deprived of almost any environmental or sensory stimuli and of almost all human contact.”

Those conditions led the plaintiff inmates to commence a class action lawsuit, claiming that the procedures used by the Ohio prison administrators to assign them to OSP violate their constitutional right to due process. In decisions reported sub nom. Austin v. Wilkinson, 189 F.Supp.2d 719 and 204 F.Supp.2d 1024 (N.D.Ohio 2004), Judge Gwin ruled in favor of the inmates, finding first that the prisoners have a protected “liberty interest” in avoiding placement in the super-max, due to the severity of the conditions compared to other prisons in Ohio. Given that the inmates have a liberty interest, the district court next identified multiple deficiencies in the administrative procedures in place, including that inmates are not given notice of all the evidence that may be relied upon in their classification hearings, that inmates are not allowed to call witnesses and that the final decisionmaker, the Bureau of Classification, was not required to describe the facts found and reasoning used in making its placement decisions. The district court ordered modifications to the prison regulations to correct those deficiencies.

On appeal, Ohio argued that any concerns about the inmates’ due process rights were satisfied by new policies and procedures it instituted in 2002 (the “New Policy”) which provided more guidance regarding the factors to be considered in placement decisions and afforded inmates more procedural protection against erroneous placement at OSP. In a decision reported at 372 F.3d 346 (6th Cir. 2004), the Sixth Circuit generally affirmed Judge Gwin’s ruling. Citing the Supreme Court’s decision in Sandin v. Conner, 515 U.S. 472 (1995), it concluded that placement in OSP constituted an “atypical and significant hardship” and it concluded that the severity of those conditions mandated a more formal procedure for reviewing the placement decision.

Ohio appealed to the Supreme Court, which granted certiorari to consider the following question: “Where state prison officials decide to place a prisoner in a ‘super-maximum security’ facility based on a predictive assessment of the security risk the prisoner presents, but prison regulations create a liberty interest for the prisoner in avoiding such placement, do procedures meeting the requirements specified in Hewitt v. Helms, 459 U.S. 460 (1983), satisfy the prisoner's due process rights?”

In addressing that question, the Court first noted that “claims alleging violation of the Eighth Amendment’s prohibition of cruel and unusual punishments were resolved, or withdrawn, by settlement in an early phase of this case. Here, any claim of excessive punishment in individual circumstances is not before us.”

The Court agreed that placement in a super-max facility “imposes an atypical and significant hardship under any plausible baseline.” However, after reviewing a litany of its leading cases on prisoners’ rights, including Hewitt, Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1 (1979) and Mathews v. Eldridge, 424 U.S. 319 (1976), the Court unanimously reversed the Sixth Circuit and held that:

“Ohio’s New Policy provides informal, nonadversary procedures comparable to those we upheld in Greenholtz and Hewitt, and no further procedural modifications are necessary in order to satisfy due process under the Mathews test. Neither the District Court nor the Court of Appeals should have ordered the New Policy altered.”

For two reasons, we found the Court’s decision somewhat forced and unconvincing. First of all, although the Court premised its ruling on the due process rights embodied in the New Policy that Ohio had recently adopted, the Court also observed that the record in this case was “not altogether clear regarding the precise manner in which the New Policy operates.” (Emphasis added).

Second, the Court admitted that super-max prisons are a relatively recent concept in American punishment; and yet, in upholding the procedures adopted by Ohio to deal with that new phenomenon, the Court relied primarily on rules and safeguards it had adopted in nearly a dozen cases that were decided long before the advent of super-max prisons.

In light of recent revelations about rampant abuse at this country’s military prisons, one would have thought that the Court might have been willing to re-think its time-honored custom of deferring to prison officials on virtually every aspect of prison life - especially in this case where the Court conceded that the super-max prisons result in “atypical and significant hardships.” Instead, the Court seemed perfectly comfortable in resting its decision on one convenient - but highly problematic - assumption, namely that: “Prolonged confinement in Supermax may be the State’s only option for the control of some inmates.”

Revocation of Supervised Release Based on Below-Cutoff Test Results: U.S. v. Klimek, No. 04-2549-cr (2nd Cir. June 8, 2005) - Here, in the context of a supervised release revocation proceeding, the Second Circuit held that a district court is not "per se precluded" from relying upon confirmatory drug test results that fall below the cutoff established by contracts between an outside testing company and the Administrative Officer of the United States Courts for determining whether the defendant used drugs.

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