Juvenile lifer Ray Carp

A few years ago, we tracked the Miller v Alabama case as it went to the SCOTUS to decide whether juveniles could be given life sentences. The Court said such sentences were unconstitutional but did not address whether the decision applied retroactively; i.e. to inmates long-ago convicted when they were juveniles but who still remain incarcerated several decades later.

The SCOTUS decision from last month in Montgomery v Louisiana held that the ban against life sentences for convicted juveniles does apply retroactively and in dicta, urges the states that have refused to release such convicts to parole them as soon as possible. Michigan, along with 5 other states, has refused to apply the Miller ruling retroactively, keeping all of their juvenile lifers locked-up.

A close read of the 6-3 opinion in Montgomery shows that the SCOTUS has not only retroactively applied the juvenile lifer ban to all past state and federal sentences, it also strengthened its ruling in Miller.  The legal scholar Lyle Denniston of SCOTUSBlog puts it this way:

The new decision does make Miller retroactive to cases that were final before the date of that ruling — June 25, 2012.  But it also appears to go beyond the actual scope of the Miller ruling, by strengthening the chance that a newly convicted juvenile will be able to show, at the time of sentencing, that he is not beyond rehabilitation to become a law-abiding individual.  Life without parole, the Court declared, is always unconstitutional for a juvenile unless he or she is found to be “irreparably corrupt” or “permanently incorrigible.”

The Michigan Attorney General has actively resisted applying the juvenile lifer ban retroactively. The AG asserts that the sentences were constitutional when imposed and that the focus should be on the crime victims, not the murderers.

There are approximately 350 persons in Michigan that are in a position to be re-sentenced or paroled. Among them is Raymond Carp, who perhaps has the most questionable conviction of this select group. Carp was the subject of one of our 2014 posts; his conviction, although it withstood a lengthily and withering appeal, arguably was a result of "guilt-by-association"; his co-defendant was a much older mastermind of the murder in which he was entangled.

Now, Carp, along with the other juvenile lifers here in Michigan actually stand a chance at parole.

Post #522

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Legal Scholar Lyle Denniston

Batman will probably show-up again; Spiderman has been crawling the marble steps seeking attention; and various flag-waving, placard-touting groups in support of and opposed to marriage equality have been a fixture along First Street in Washington D.C. over the past several weeks. As June evaporates, the Supreme Court's final day for this session, Monday, fast approaches.

There is a rare sense of growing anticipation surrounding the Supreme Court building as the Court gets ready to announce its last few decisions of the term.  Of all the cases argued before the SCOTUS this term, only 5 remain undecided, including the DeBoer same-sex marriage and adoption consolidated cases.

We here at the Law Blogger think the High Court will issue the decision this morning when their penultimate session begins at 10:00 am.

Lyle Denniston of SCOTUSBlog no doubt already has his analysis at the ready; he's probably just waiting for an opinion to read before posting to his well-read blog. The two issues the Court will likely resolve today in deciding the DeBoer case are: whether states have power to ban same-sex marriages; and whether states must recognize same-sex marriages from other states.

Currently, marriage equality is the law in 36 states. All of the state laws banning same-sex marriage in the remaining 14 states are under constitutional challenge.

When the SCOTUS began its term in October, it did not elect to review any of the then-pending same-sex marriage cases that had percolated through the federal courts of appeal. Then the Sixth Circuit reversed U.S. District Judge Bernard Friedman's opinion and order striking down Michigan's state laws banning same-sex adoptions and marriages.

In upholding the state law bans, the Sixth Circuit bucked a national trend among the federal appellate circuits which had until then uniformly ruled in favor of recognizing marriage equality. So the SCOTUS granted certiorari and today is the moment of truth on this constitutional issue.

Once the Court issues its decision, we will review and distill the opinion and provide our readers with our take on this important civil rights issue.

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In what legal scholars are hailing as a surprising ruling, [we were surprised here at this blog] the United States Sixth Circuit Court of Appeals upheld the state constitutional ban in Michigan on same-sex marriages and adoptions.  In doing so, the Sixth Circuit broke away from the other federal circuits to decide the issue.  These state bans have been held unconstitutional in the 4th, 7th, and 10th Circuits.

The case we are talking about here in Michigan is, of course, the Deboer case.  The ruling from Cincinnati, also encompassed state ban cases pending in Ohio, Tennessee, and Kentucky; this ruling will make the same-sex civil rights issue more attractive to the SCOTUS, no doubt.  On that note, Lyle Denniston of SCOTUSBlog, lays out three distinct procedural options that lawyers for the Deboers and the other litigants in the cases pending in the other Sixth Circuit states are analyzing as this post is being composed.

The Sixth Circuit held that states are able to determine what rules govern the institution of marriage.  One consequence of the ruling is that 100s of couples remain in legal limbo that were legally married in Michigan during the brief period between when federal judge Bernard Friedman struck the state law ban, and when the ruling was stayed on appeal.

Michigan Attorney General Bill Schuette stated briefly that he believes and has repeatedly stated that the issue will be ultimately decided by the SCOTUS sooner rather than later; that is as it should be.  Those of us in the legal industry, especially appellate watchers like Mr. Denniston, anticipate swift filings on behalf of the lawyers involved in the cases.

Last month, presumably because there was unanimity among the circuits, SCOTUS took a pass on the issue. Because of this ruling, new filings could hit the High Court by the end of the month.

We predicted wrong in one of our earlier posts; we predicted the Sixth Circuit would uphold the lower courts as the appellate courts have done in Virginia, Indiana, Wisconsin, Utah and Oklahoma throughout the federal circuits; and with more cases in the pipeline.

We here at the Law Blogger agree with Attorney General Schuette that resolution of these civil rights issues needs SCOTUS attention, and the sooner the better.

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By: Timothy P. Flynn

Fresh off the press from yesterday's announced decision: the 4th Amendment warrant requirement means something after all.  In Riley v California, a case we've been tracking here at the Law Blogger, SCOTUS held that without a warrant, the police cannot seize the digital data contained in an arrestee's cell phone.

California college student and convicted gang member, David Riley, had the misfortune of having a routine "tail light" stop turn into a 15-to life weapons-n-[attempted] murder-related sentence.  Now SCOTUS has reversed that sentence in a unanimous opinion that injects new life into the 4th Amendment's search and seizure clause.

The traffic stop led to the discovery that Riley's drivers license was suspended.  When law enforcement makes an arrest, the practice of conducting a search incident to that arrest is one of the exceptions to the 4th Amendment's warrant requirement.  Well, in Riley's case, that search led to the discovery of guns in the trunk.

The cops also located Riley's cell phone in the car from which they promptly extracted digital data in its entirety.  Think for a moment about the kind of data that lies buried within your cell phone.

In Riley's case, over his objection, the cell phone data suggested to the jury that Riley may have ran with a gang, and that he knew some things about the attempted gang hit for which he was being prosecuted.  

Legal scholar Lyle Denniston of SCOTUSblog summarized the High Court decision much better than we ever could:

Treating modern cellphones as gaping windows into nearly all aspects of the user’s life and private conduct, the Supreme Court on Wednesday unanimously ordered police to get a search warrant before examining the contents of any such device they take from a person they have arrested.  Seeing an individual with a cellphone  is such a common thing today, Chief Justice John G. Roberts, Jr., wrote, “the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

The Court rejected every argument made to it by prosecutors and police that officers should be free to inspect the contents of any cellphone taken from an arrestee.  It left open just one option for such searches without a court order:  if police are facing a dire emergency, such as trying to locate a missing child or heading off a terrorist plot.  But even then, it ruled, those “exigent” exceptions to the requirement for a search warrant would have to satisfy a judge after the fact.

The ruling was such a sweeping embrace of digital privacy that it even reached remotely stored private information that can be reached by a hand-held device — as in the modern-day data storage “cloud.”  And it implied that the tracking data that a cellphone may contain about the places that an individual visited also is entitled to the same shield of privacy.

We here at the Law Blogger heartily agree with this unanimous decision.  We walk around with our private lives attached, literally to our hip, or our ear, or our belt.  Cell phones are miniature personal computers, and should be imbued with some modicum of privacy relative to law enforcement.

If the data is needed to prove criminal conduct, then an old fashioned warrant must be secured.  From their landmark graves, our Founding Father's would agree.

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Attorney General Bill Schuette

By:  Timothy P. Flynn

Yesterday, the U.S. Supreme Court issued a seminal opinion deciding the constitutionality of Michigan's 2006 voter-initiative law, known as Proposal 2, that prohibited public colleges and universities from granting preferential treatment to racial minorities when making admission decisions.   The case, Schuette vs Coalition to Defend Affirmative Action, was a big win for Michigan Attorney General Bill Schuette.

In announcing the SCOTUS decision, Justice Anthony Kennedy insisted the High Court was not ruling substantively on the race issue but rather, only on whether courts have the authority to "disempower" voters from making decisions on such substantive, and admittedly divisive, issues.  Justice Kennedy's so-called swing-vote controlled the outcome in the 6-2 decision [Justice Elena Kagan abstained due to her earlier involvement in the case as the U. S. Solicitor General].

SCOTUS legal scholar and blogger Lyle Denniston noted that conservative Justices John Roberts, Jr. and Samuel Alito, Jr. would have gone further than the majority by declaring:

that no policy that takes race into account can be upheld if it is not a direct remedy for intentional racial discrimination — in other words, they would not allow race-conscious remedies for programs that have a more negative effect on minorities when discrimination was not intended.

Justice Sonya Sotomayor, on the other hand, issued a lengthily 58-page dissent which decried that the majority decision would make it far more difficult, if not impossible, for racial minorities to prosecute legitimate affirmative action programs like the public university admission programs at issue in the Schuette case.  Well, the problem with her analysis is that this case now holds that, if Michigan voters properly affirm an initiative, the courts cannot interfere.  While Justice Sotomayor may believe the public university affirmative action admission policies make sense, are just and fair, Michigan voters have decided otherwise.

From time to time, this blogger finds himself in the company of Bill Schuette like last May, where we discussed this case on the occasion of oral arguments recently conducted in Washington, D.C..  Mr. Schuette was confident of the AG's legal position, commenting that, "what's more equal than equality?"

He makes a compelling point folks.  And the AG's position has now prevailed through SCOTUS endorsement.

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Money isn't everything, right.  Yet here is SCOTUS, taking a close second look at the money.

A case involving a Texas Billionaire's massive estate and a washed-up model turned stripper is on the SCOTUS docket for oral argument today, for the second time.  You recall this case.

The estate of former Guess Jeans model whose, er, "married" name was Vickie Lynn Marshall, and who worked under the name Anna Nicole Smith, has carried on the lawsuit she filed shortly after J. Howard's death in 1995 at age 90.

Plenty of eyebrows were raised and family feathers ruffled in 1994 when Mr. Marshall took Smith as his third wife.  Then he died and the lawsuits began.

And these lawsuits have just not stopped, despite (and perhaps because of) the fact that all the litigants have died.  Anna Nicole Smith died in a drug overdose in 2007, shortly after the U.S. Supreme Court reversed an unfavorable decision for Smith issued by the U.S. Court of Appeals for the Ninth Circuit.

The case involves the scope of federal jurisdiction, eventually engulfing three separate court systems. At his death, Marshall had long established a trust estate plan leaving everything to his son, E. Pierce Marshall, who was also named trustee of the trusts.  Smith contested the trust plan, asserting that Marshall told her he would leave a portion of his estate to Smith.

What would have been a simple, although large, Texas county probate tussle went federal when Ms. Smith was hit with a default-judgment for, of all things, sexual harassment.  She filed for bankruptcy in California and her deceased husband's trustee-son claimed non-dischargability along with libel for statements Smith allegedly made against the decedent.  Smith counter claimed in the bankruptcy court for interference with her husband's estate plan.

Now hang with me on this....

The federal bankruptcy court not only dismissed the trustee's claim, it awarded Smith nearly half a billion dollars on her counter claim, finding that Marshall's son did interfere with his father's testamentary wishes.  This ruling was taken to the U.S. District Court where Smith's award was reduced to a paltry $88 million.

In the meantime, in an entirely separate proceeding, a Texas probate jury found that the decedent's estate plan was valid, ruling against Smith.  These decisions were then considered by the Ninth Circuit who invalidated the federal district court's award to Smith, holding that the Texas probate court had exclusive jurisdiction over such matters.

SCOTUS disagreed back in 2006, reversing the Ninth Circuit and holding that some issues tainted by state probate court could legitimately find their way into federal court via a properly raised bankruptcy-related issue; i.e. Smith's counterclaim.  The High Court then remanded the case back to the Ninth Circuit for a determination on the merits of that claim.

On those said merits, the Ninth Circuit again ruled against the stripper.  Again, the stripper, this time through her estate because she had died, appealed to SCOTUS who once again granted certiorari.  Responding to her claims is the estate of E. Pierce Marshall, who died shortly after Smith.

And now, viola, oral argument, chapter two is here today.  Stay tuned for the result.

This time, the issue concerns the very nature of federal jurisdiction and the constitutional powers (under Article II of the Constitution) of the federal courts; delving even deeper into that subject than the first go around. For a more detailed analysis of this case, SCOTUS expert Lyle Denniston has put together an excellent oral argument "recap" published on the SCOTUSblog.

Regardless of how the High Court rules, the lesson we take away from this suit is that money drives the bulk of all litigation.  Sometimes justice is just roadkill in the process.

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This Law Blog has been tracking the same-sex marriage case out of California.  We covered Perry vs Schwarzenegger in an earlier post detailing the players and the issue framed in the constitutional law suit that originated in a federal court in San Fransisco.

Since our last post on this topic, the trial court judge issued a lengthily opinion last August, ruling that California’s Proposition 8 was unconstitutional, enjoining further enforcement.  Proponents of the marriage ban appealed to the Ninth Circuit.

The U.S. Ninth Circuit Court of Appeals has stayed the trial court ruling, however,  while the appeal is pending.  Recently, televised oral arguments were conducted on the case before a 3-judge appellate panel.  


Federal appellate arguments are rarely, if ever, televised; testament to the national interest in the case.

The federal appellate court appears to be trying to figure out what, exactly, should be the scope of their ruling.  Most federal judges, particularly appellate judges, eschew rulings that become broad constitutional pronouncements.

According to the SCOTUS analyst Lyle Denniston, the Ninth Circuit’s Perry panel seems likely to nullify the ban against same-sex marriage, “provided they could do so without having to write a sweeping opinion that established a national constitutional right of gay marriage.”

The initial arguments in the case before the Ninth Circuit concerned whether the appellants even had proper standing to appeal Judge Vaughn Walker’s ruling.  California’s top government officials, the governor and the attorney general, have refused to defend Prop 8, or to appeal the trial court’s ruling.

At least one of the judges on the appellate panel was troubled that no state actors showed up to argue the case.  The appellate judge suggested that perhaps the issue could be posed to the California Supreme Court for a determination as to whether California law would allow any entity to stand in as a legal “proxy” for the suit.

Perry’s well-heeled lawyers stated in response to the suggestion that even if California law allowed a proxy-style legal fight, the proxy would be unable to demonstrate how they were harmed by lifting the ban against same-sex marriage.


Scholars of the appellate courts compare this case to the famous SCOTUS decision in Loving v Virginia, which struck down state laws banning marriage between African Americans and whites.  We wonder how the Loving case would have been decided if Mr. Loving's "bride" was a man instead of a woman.

This Perry case could be our chance to find out the 21st Century answer to that question.  As a decision from the appellate court is expected soon, perhaps by the end of the year, we must ask that you to stay tuned in on this case.

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