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Lots of statements about cert denials in criminal cases on latest SCOTUS order list

By Douglas Berman

The big news this morning from the new Supreme Court order list was the Justices’ decision to grant cert to reconsider the reversal of the death sentence for Boston Marathon bomber Dzhokhar Tsarnaev.  But also of interest to criminal justice fans are three additional cases in which SCOTUS denied cert, but a few justices issues a statement about the issues in the case. 

One of these cases Longoria v. United States, No. 20-5715, involves a guideline issue that I am eager to discuss in a separate full post.  The other two involve muder defendants, and issues that obviously seemed worth noting by at least on Justice. 

In Thompson v. Lumpkin, No. 20–5941, Justice Kagan authored a concurrence in the denial of cert, joined by Justices Breyer and Sotomayor, flags various problems she see in the Fifth Circuit’s application of AEDPA rules leading to its refusal of a state capital defendant’s “request for an evidentiary hearing on two claims relating to his capital sentence.”  Like many AEDPA issues, this matter is intricate, important and inevitably opaque.

in Smith v. Titus, No. 20–633, Justice Sotomayor issued a solo and lengthy dissent from the denial of certiorari.  Here is how her 13-page opinion gets started:

Because “the Sixth Amendment right to a public trial extends beyond the actual proof at trial,” courts must meet a high standard “before excluding the public from any stage of a criminal trial.”  Presley v. Georgia, 558 U.S. 209, 212–213 (2010) (per curiam).  At Byron Smith’s trial, however, the judge cleared all members of the public from the courtroom before issuing a key evidentiary ruling.  Even though the judge did not justify the closure in accordance with the dictates of this Court’s precedents, the Minnesota Supreme Court found no constitutional error because it concluded that defendants have no public-trial right in so-called administrative proceedings.  That ruling was manifestly incorrect. Because the Minnesota Supreme Court’s decision contravened clearly established federal law, the Court of Appeals for the Eighth Circuit erred in denying Smith’s application for a writ of habeas corpus.  I would grant the petition for a writ of certiorari and summarily reverse.