Previewing how SCOTUS will sort through Rehaif reverberations

Writing over at SCOTUSblog here, Evan Lee effectively previews the pair of criminal cases that the SUpreme Cout will hear Tuesday morning. The post is titled “Pondering the aftermath of a landmark ruling in felon-in-possession cases,” and here is how it starts and concludes:

On June 21, 2019, the Supreme Court handed down its opinion in Rehaif v. United States, holding that a conviction under the federal statute penalizing felons in possession of a firearm requires not only the defendant’s knowledge that he possessed a gun, but also that he knew he had the legal status of a convicted felon.  The 7-2 decision overruled precedent in every circuit that had considered the issue.  Rehaif applies to every federal felon-in-possession conviction not yet final as of the date of that decision.  Now the question is whether some or all of those cases need to be sent back for new pleas or trials.

On Tuesday, in the companion cases of Greer v. United States and United States v. Gary, the court will hear argument on how to sort out the affected cases.  Greer asks whether jury verdicts are valid if there was no consideration at trial of whether the defendant knew of their felon status; Gary presents a similar question in the context of guilty pleas.  Perhaps even more important than the issue of plea versus jury verdict is the question of whether the defendant should have to prove that he likely wouldn’t have been convicted if knowledge of felon status had been an essential element of the offense when he was first charged.  Still another critical question is what materials a court may look to in deciding whether the defendant suffered such “prejudice.”…

At oral argument, if Justices Stephen Breyer (the author of Rehaif), Elena Kagan and Sonia Sotomayor show no interest in the structural error argument, it may be doomed, as the more conservative justices seem unlikely to be more enthusiastic.  Perhaps the most interesting thing that might emerge at argument is questioning about the psychology of felons.  Can counsel for Greer and Gary offer a sufficiently plausible scenario or scenarios in which felons might not actually realize that they fit into the “felon” box for purposes of the statute?  For example, do some felons erroneously believe that a guilty plea or suspended sentence keeps them out of that category?  For that matter, do some felons believe that if they have “paid their debt to society” by serving their prison sentences, their felon status has been legally erased?  Scenarios like these could give rise to some interesting hypotheticals at argument.