Relevant SCOTUS Goings On (Corrected)(Updated)

Well, well.

It seems our issue keeps bubbling to the surface in other venues, in other contexts, long after we first noticed it.

There are now two cases before the Supreme Court that are, perhaps, serendipitous.  And perhaps not.  Because as with all things in appellate courts, assessments of favorable v. unfavorable must abide the event, “the event” being whenever some judge or group of judges decides to weigh in.

We discover these cases courtesy of SCOTUS Blog’s “Relist Watch” which is a very useful tool for learning what SCOTUS Justices and/or their law clerks are looking at and maybe even interested in.

Astute and attentive readers, in other words, will appreciate the significance of Manuel v. City of Joliet.  It was filed in the SCOTUS way back in April, but by the time some modicum of interest was shown – that is, a response was requested – and after two extensions, the matter wasn’t fully submitted until December 14th, whereupon it was quickly scheduled for a conference, whereupon it was then relisted.

A “response requested” and a “relist” are two signs that the case is receiving serious attention.

We don’t really like this development otherwise.  Take a look at the Petitioner’s brief.  The case is out of the 7th circuit, which is the most confused circuit on our issue and has been the circuit most responsible for confusing the rest of the country.  The confusion is reflected in the brief, which is nowhere near up to speed, citing Albright v. Oliver – a 7th circuit case, of course – as standing for the proposition that a federal “malicious prosecution” cause of action sounds in the 4th amendment rather than the due process clause, which leaves Mooney v. Holohan out of it, a – ahem – problematic result inasmuch as Mooney and its progeny are the governing federal law on the question and they are all due process cases.  The brief cites neither Mooney, nor Pyle nor Miller v. Pate.


The Respondents’ response is dismissive, only 5 pages.  The Petitioner’s reply is more dismissive still, only 2 pages.

This case isn’t very well briefed and we hope the SCOTUS denies the petition.  It wasn’t granted today, so it’s either going to be denied or “relisted” again.  We have nothing against the Petitioner, but we hope it’s the former.  Too much at stake for us and lots of other people to have the issue messed up in the SCOTUS with yet another 7th circuit fiasco.

The other case is this one.  It was filed at the end of May and has been “relisted” five times.  It was not among the grants today either, meaning it will either be relisted again or denied on Monday, and again while having nothing at all against the Petitioner we hope it’s the latter, because the issue in the case is a Brady issue and the Petitioner’s attorney is not aware of the true Brady-Mooney relationship.  He more appears to be of the erroneous mind that Mooney has been “generally subsumed” into Brady.

Ugh again.

What is interesting about both of these cases is that the disfavored litigant is the Petitioner in both and they received considerable interest and attention.  Ordinarily when the disfavored litigant is the Petitioner a case will receive no attention in the SCOTUS no matter how meritorious it might otherwise be.

We’ve talked about that before, in the same context, but with respect to different cases which were also not taken up.  Thankfully.

That was in February, almost a year ago, and we surmised then that there was at least one Justice on the SCOTUS who was attuned to our issue.  We think by now there is probably more than one, but in that respect nothing has changed, because one is all you can know for sure.

This is a little like reading tea leaves, isn’t it?

Correction:  Manuel v. City of Joliet was a GRANT.  Ugh.  We are morons sometimes.  Don’t know how we missed that, misreading the order list on Friday.

What does this mean?  This is a very important development for us.  We may have things to do in connection with it.  Ugh again.

The other case, Wearry v. Cain, does not appear on today’s order list unless we are become morons again and have misread the list.  In all likelihood this means another relist – the 6th for this petition.  Or perhaps it has been consigned to some sort of SCOTUS limbo.

Update:  Wearry v. Cain is “relisted” again for this Friday’s conference.  See here.  That’s a 6th relist.  If I’m not mistaken, while a relist or two means a greatly enhanced chance of a grant, this many relists implies the opposite, but an enhanced chance of, say, a dissent from a denial of cert.

Again, this begins to resemble reading tea leaves or divination.



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5 responses to “Relevant SCOTUS Goings On (Corrected)(Updated)

  1. Jessie

    Thanks for this post. It’s interesting to me because of a case that I’ve been following that’s currently in the federal appellate system. I do not understand the way they make decisions. For example, aren’t they only supposed to address matters of law, not the facts of the case? In this appeal, the question before them was: Should the jury have been allowed to hear Argument A? But instead of answering that question, the three-judge panel from the circuit court tackled the merits of Argument A instead. I didn’t think they were allowed to do that….

    Sorry, I’m being vague…it’s not a case I can discuss publicly, at least not if I want to maintain my online anonymity. But I’m confused about, for one thing, the layers of federal criminal appeals. Is the only option after the Circuit Court the Supreme Court, or can they be heard in front of the entire circuit rather than just a 3-judge panel? When do federal habeas appeals enter into it? It’s very confusing.

    I’m also curious what you think of the ability of prosecutors to offer a non-prosecution agreement in exchange for turning state’s evidence. This seems to me a very dangerous practice, likely to produce even more useless information than jailhouse snitches, since the person has so much more to lose. If I fear being prosecuted, I have incentive to testify to anything they want me to say without regard to the truth of it.

    In any case, I’ll try to keep an eye on these because this case I’m following will likely attempt to be heard by the Supreme Court on the basis that at least two of the circuits have conflicting opinions on the law in question. I have no idea if that means the Supreme Court is more likely to hear it or not.

    Meanwhile, a man sits in federal prison for something he didn’t do. As you would say….ugh!


    • Such a lot of good and interesting questions in one comment! On to it.

      In general, yes, appellate courts deal only with questions of law and do not resolve factual questions. So ordinarily, you want to present them with facts that are not disputed and which present an issue of law.

      But this isn’t always the case. On very rare occasions an appellate court might hold that a fact finding in the trial court was “clearly erroneous” based upon the appellate court’s own review of the record. More commonly they can get a case where there have been no fact findings – say, a complaint that has been dismissed under F.R.Civ.P 12(b)(6) – and then the law, generally speaking, is to assume the truth of all the facts alleged in the complaint. Although this rule has been qualified to some extent by the fairly recent Supreme Court cases Iqbal and Twombly, and all federal courts are familiar with them, because they make it easier to throw Plaintiffs out of court.

      Without more detail I can’t really illuminate the specific scenario you outline very much, where the question was whether a jury should have been allowed to hear an argument, but I would suspect that in the criminal case context the contention of the defendant is that the prosecutor made an improper argument on the evidence and the appellate court wanted to hold that even if that’s true it would make no difference, so they resolve the argument against the defendant and uphold the conviction.

      Moving on, yes a case can be heard by the entire federal appellate court “en banc”, either initially or on petition of whoever loses the 3 judge panel ruling. They don’t like to do this because the whole purpose of hearing cases in three judge panels is to divide the (usually considerable) workload. Intermediate appellate courts do get some sympathy from me inasmuch as they have a lot of work to do, but I also think they rubber stamp way too much and that aggravates their workload problem, in my view. In any case, en banc sittings are extremely rare, I think more rare than cert grants in the SCOTUS.

      Finally, you are certainly correct that non-prosecution agreements, or any other leniency deals in exchange for testimony, are exceedingly dangerous practices capable of horrifying abuse by prosecutors. Nevertheless these are very common practices in both state and federal criminal prosecutions. There was some federal appeals court judge a few years back who I think held that it was witness bribery, which caused a lot of raised eyebrows but hasn’t resulted in much change. Personally, I think it’s a difficult problem. I think the general rule is that government can prosecute whom they please, and if they forego prosecuting one so they can get others that’s a proper exercise of their discretion. But the reliability of testimony obtained like that is poor, very much like jailhouse snitch testimony as you rightly point out. The worst abuse, in my view, is when all the witness is really offering is something the defendant supposedly said. I think the rule should be that any such testimony should not be allowed unless it is corroborated.

      Good questions. I hope the man in federal prison who doesn’t belong there is at least in one of their nicer facilities.


  2. Jessie

    I hope so too, but I don’t know. He won’t allow anyone to visit because the long-term inmates have told him that, once your friends and family visit, after they leave is when you start trying to kill yourself.

    They’re pleasant enough to talk to when I’ve called the facility, and will sometimes relay messages, even though that’s apparently against DOC policy. I don’t know what that means for the inmates. We’ve all said he can talk about it or not, as he chooses, and so far he’s chosen not to discuss what day-to-day life is like.

    So if en banc hearings are rare and cert grants from the Supreme Court are rare, what appeals options are there after a direct appeal is lost?

    The argument that I’m referring to was a specific defense argument that wasn’t heard at all. The prosecutor argued successfully to keep it out. The defense tried to argue on appeal, particularly based on a recent Supreme Court case, that the jury should have been allowed to decide the question rather the judge.

    The circuit court panel rejected that, but then made (to be fair, a pretty decent) argument for why the facts of that defense were invalid, without addressing the question of whether the jury should have been the ones to decide that in the first place. It might not have made any difference, but it does seem to be pretty clearly in contradiction to the Supreme Court case referenced in the defense’s pleadings.

    BTW, this case happened after I started reading and commenting on your blog. Sometimes you’ve posted things that have been informative, but it wasn’t the basis for my interest in your blog, which as I recall was one of the big, highly-publicized cases. The kind I recently said we can’t really know anything about anyway. Hard enough to wade through a case you do know something about!


    • Well, Jessie, this sounds like an interesting problem you’re having.

      En banc review would be more likely if there was a dissent, but even then it is extremely unlikely.

      The collateral “habeas” proceeding pertaining to a federal criminal conviction is called a “motion” under 28 U.S.C. 2255, in contrast to a state criminal conviction challenged on federal habeas under 2254, which is still called a “petition” and thus really should be termed a “proceeding” except that the federal rules of civil procedure abolished all such distinctions and now everything is termed an “action”.

      I’m sure you find that as fascinating as I do, but anyway in general a 2255 motion would be the next step but you might be better off petitioning for cert first, but I don’t know.

      If you want to provide more detail or a case name so I can look at your questions more closely I’d be happy to do that. You can contact me privately as indicated above. It’s up to you.


  3. Jessie

    Thank you, John. Truly, I was really touched by this offer. Especially since I realize there is absolutely nothing you can do. I just want a shoulder to cry on that belongs to somebody who knows what I’m crying about (i.e., somebody who gives a damn about the difference between a “motion,” a “petition,” and an “action”! That cracked me up when I needed the laugh….thanks….and I don’t have the slightest idea what the difference is between those things!)

    I don’t even know what to send you. Assuming a case number will grant you free access to the court files on PACER, the court files only occasionally address the real issue at hand. Plus, there is some amount of information in the file that I either don’t believe is true or that I’m pretty skeptical about.

    In short, how would I even begin to explain this?? There’s just such an overwhelming amount of backstory….


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