Fifth Amendment

White v. Woodall

Issues: 

Does a trial court’s rejection of a non-testifying defendant’s request for a no-adverse-influence instruction during the sentencing phase of a capital punishment trial violate that defendant’s Fifth Amendment right against self-incrimination when the defendant has pled guilty to all of the alleged crimes and aggravating circumstances?

Robert Keith Woodall pled guilty to the murder, rape, and kidnapping of a sixteen-year-old victim. At the penalty phase, Woodall put on fourteen witnesses but did not himself testify. The trial court rejected his request for a no-adverse-inference jury instruction regarding his decision not to testify. The jury recommended the death penalty, and the trial court accepted this recommendation. After exhausting state court avenues, Woodall filed for and received habeas corpus relief from a federal district court. The Sixth Circuit affirmed, concluding that the trial court violated Woodall’s Fifth Amendment privilege against self-incrimination by rejecting his request for a no-adverse-inference jury instruction. In this case, the Supreme Court will have the opportunity to consider whether the rejection of a request for a no-adverse-inference at the penalty phase of a trial, even where the defendant has pled guilty to all charged crimes, violates the Fifth Amendment right against self-incrimination. This case will impact the rights of criminal defendants charged with capital crimes and will clarify prior Supreme Court precedent. 

Questions as Framed for the Court by the Parties: 

Robert Keith Woodall, amidst overwhelming evidence of his guilt, pled guilty to kidnapping, raping, and murdering a 16-year-old child, and thus pled guilty to all aggravating circumstances. At the penalty phase trial, the prosecutor elected to present evidence of guilt and the circumstances of the crimes. Woodall did not testify; and his request that the jury be instructed not to draw any adverse inference from his decision not to testify (a "no adverse inference instruction") was denied. He was sentenced to death by a Kentucky jury. The Kentucky Supreme Court affirmed. 

Even though this Court has never held that a defendant is entitled to a no adverse inference instruction at the sentencing phase of a trial where the defendant has pled guilty to the offense and all aggravating circumstances, the Sixth Circuit granted habeas relief to Woodall on the ground that the trial court's failure to provide such an instruction violated his Fifth Amendment right against self-incrimination. The questions presented are: 

  1. Whether the Sixth Circuit, violated 28 U.S.C. §2254(d)(1) by granting habeas relief on the trial court's failure to provide a no adverse inference instruction even though this Court has not "clearly established" that such an instruction is required in a capital penalty phase when a non-testifying defendant has pled guilty to the crimes and aggravating circumstances. 
  2. Whether the Sixth Circuit violated the harmless error standard in Brecht v. Abrahamson, 507 U.S. 619 (1993), in ruling that the absence of a no adverse inference instruction was not harmless in spite of overwhelming evidence of guilt and in the face of a guilty plea to the crimes and aggravators.

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Facts

A grand jury indicted Respondent Robert Keith Woodall for the murder, kidnapping, and rape of a sixteen-year-old female victim, and Woodall pled guilty in Kentucky state court to all of the charges and aggravating circumstances.

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The authors would like to thank Professor John H. Blume of Cornell Law School for his insights into this case.

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Kansas v. Cheever

Issues: 

When a defendant presents expert testimony that he was not in the required mental-state to commit a capital offense because of methamphetamine use, does the State violate the defendant’s right against self-incrimination by presenting rebuttal testimony based on a court-ordered mental evaluation of the defendant?

Court below: 

After he shot and killed Sheriff Matthew Samuels, Scott Cheever argued that his habitual use of methamphetamines prevented him from forming the necessary mental intent to commit capital murder. The State initially filed its case in federal court after Kansas temporarily abolished the death penalty. In federal court Cheever presented the defense of voluntary intoxication, which is not recognized as a mental disease or defect defense in Kansas, and used expert testimony to support his defense. The federal court ordered Cheever to undergo a mental evaluation. Later, Kansas reinstated the death penalty and the State asked the federal court to send the case to state court. In state court, Kansas used the results of Cheever's mental evaluation to rebut his voluntary intoxication defense. Cheever argues that this evidence should not have been presented because he did not intend to waive his Fifth Amendment right against self-incrimination when he presented his mental status defense in state court. Kansas argues that by presenting mental health testimony, Cheever voluntarily opened the door to rebuttal testimony based on the court-ordered mental health exam. This case will address the role of state law in a defendant’s waiver of the federal constitutional right against self-incrimination. It will also impact prosecutors’ ability to rebut a defendant’s testimony in light of the Fifth Amendment. The issues in this case implicate questions of federalism and constitutional rights.

Questions as Framed for the Court by the Parties: 
  1. When a criminal defendant affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, does the State violate the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant?
  2. When a criminal defendant testifies in his own defense, does the State violate the Fifth Amendment by impeaching such testimony with evidence from a court-ordered mental evaluation of the defendant?

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Facts

On January 19, 2005, Scott D. Cheever shot and killed Greenwood County Sheriff Matthew Samuels near Hilltop, Kansas. See Kansas v. Cheever,284 P.3d 1007, 1014 (Kan. 2012). Cheever and four others were cooking and using methamphetamine in the early morning before the police arrived at the home.

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Kaley v. United States

Issues: 

Do the Fifth and Sixth Amendments require a pretrial, adversarial hearing, at which the defendant may challenge the underlying charges before the government can freeze assets needed by the defendant to retain counsel of choice?

Kerri and Brian Kaley were indicted by a federal grand jury in 2007 for stealing prescription medical devices and selling them on the black market. Along with the indictment, the United States obtained an order to restrain assets traceable to the alleged crime. Because those assets were needed to retain the Kaleys’ counsel of choice, the Kaleys contested the order as violative of their Fifth Amendment right to due process and of their Sixth Amendment right to counsel of choice. Those rights, the Kaleys argued, entitled them to a full pretrial, adversarial hearing at which to challenge the validity of the forfeiture. The Eleventh Circuit Court of Appeals ruled that the Kaleys are entitled only to a hearing at which to challenge the assets’ traceability to the crime—not the underlying charges as well. The Supreme Court’s ruling in this case will impact not only the scope of pretrial asset restraint hearings, but also the ease with which the government may seize assets, as well as defendants’ ability to retain counsel of their choice.

Questions as Framed for the Court by the Parties: 

When a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, do the Fifth and Sixth Amendments require a pre-trial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges?

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Facts

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Salinas v. Texas

Police in Houston, Texas questioned Genovevo Salinas in 1992 during a murder investigation. Salinas answered all of their questions until the police asked whether he thought that casings found at the murder scene would match the shotgun the police found in his house. In response, Salinas remained silent. Later, he was charged with murder, tried, and convicted partially on the basis of evidence that he had remained silent during police questioning before he was arrested and given his Miranda warnings. Salinas claims that the Texas trial court should not have admitted evidence of his silence because of the Fifth Amendment privilege against self-incrimination. He argues that allowing evidence of his silence would violate the Fifth Amendment by forcing him to speak or have his silence used against him. The State of Texas argues that the evidence was appropriately admitted and outside the protection of Fifth Amendment privilege because Salinas’s silence was non-testimonial and the police questioning was non-coercive. The Supreme Court’s decision will determine the scope of the Fifth Amendment protection against self-incrimination and, more specifically, whether it extends to the protection of a defendant’s pre-arrest, pre-Miranda statements to the police.

Questions as Framed for the Court by the Parties: 

Whether or under what circumstances the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.

Issue

Do prosecutors violate an accused criminal’s Fifth Amendment’s right against forced self-incrimination when they use evidence of his silence against him even when the evidence comes from questioning conducted before he was taken into police custody?

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United States v. Windsor

Edith Windsor and Thea Spyer married in Toronto in 2007 where same-sex marriages were legal. At the time of Spyer’s death, the state of New York recognized the couple’s marriage. However, the IRS denied Windsor use of a spousal estate tax exception on the ground that, under the Defense of Marriage Act (“DOMA”), the federal government did not recognize same-sex marriages for the purpose of federal benefits.
 The Supreme Court is now being asked to decide DOMA’s Constitutionality. The Obama Administration is not defending DOMA, so a Bipartisan Legal Advisory Group (“BLAG”) from the House of Representatives is doing so, arguing that DOMA is rationally related to the legitimate government objective of providing a uniform definition of marriage for federal benefits purposes. The Obama administration counters that the use of sexual orientation to decide who gets benefits is a suspect classification that deserves higher scrutiny. Under that level of higher scrutiny, the Obama administration argues that DOMA is impermissible.
 This case can affect what role the federal government can play in defining marriage and who in the federal government can defend the government’s laws. Not only could this case provide large tax savings to Ms. Windsor herself, but it can also make federal benefits available to other same-sex couples who are legally married under the laws of their state.

Questions as Framed for the Court by the Parties: 

Section 3 of DOMA defines the term “marriage” for all purposes under federal law, including the provision of federal benefits, as “only a legal union between one man and one woman as husband and wife.” 1 U.S.C. 7. It similarly defines the term “spouse” as “a person of the opposite sex who is a husband or a wife.” Ibid. The question presented is:

Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state. 

In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: whether the executive branch’s agreement with the court below that DOMA is unconstitutional deprives this court of jurisdiction to decide this case; and whether the BLAG has Article III standing in this case. 

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Acknowledgments: 

The authors would like to thank Professor Michael C. Dorf for his insights into this case and former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.

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Marvin D. Horne, et al., v. Department of Agriculture

In 2002, California raisin farmers Marvin and Lena Horne (“Horne”) substantially reorganized their raisin business in order to handle the raisins that they produced to try to avoid the requirement under the Agricultural Marketing Agreement Act of 1937 (“AMAA”) to turn over a percentage of handled raisins to the government. After Horne’s failure to comply, the USDA brought an action against Horne according to the required AMAA procedure. Although the Ninth Circuit Court of Appeals initially ruled against Horne on his takings claim, the Ninth Circuit amended its opinion and determined that Horne’s takings claim was “unripe” because Horne had to raise his takings claim in the Court of Federal Claims pursuant to the Tucker Act. Horne and the USDA disagree over whether Horne’s takings claim is ripe for adjudication; the USDA believes that the claim is unripe until Horne pursues it in the Court of Federal Claims. Specifically, the USDA believes that the AMAA does not displace the Tucker Act’s otherwise-mandatory procedures, while Horne asserts that the AMAA’s comprehensive statutory scheme displaces the Tucker Act for all related claims. Horne states that such a requirement mandates costly, duplicative litigation, while the USDA counters that such a result is the desired outcome of the statutory scheme.

Questions as Framed for the Court by the Parties: 

1. Whether the Ninth Circuit erred in holding, contrary to the decisions of five other Circuit Courts of Appeals, that a party may not raise the Takings Clause as a defense to a "direct transfer of funds mandated by the Government," Eastern Enterprises v. Apfel, 524 U.S. 498, 521 (1998) (plurality), but instead must pay the money and then bring a separate, later claim requesting reimbursement of the money under the Tucker Act in the Court of Federal Claims. 

2. Whether the Ninth Circuit erred in holding, contrary to a decision of the Federal Circuit, that it lacked jurisdiction over petitioners' takings defense, even though petitioners, as "handlers" of raisins under the Raisin Marketing Order, are statutorily required under 7 U.S.C. § 608c(15) to exhaust all claims and defenses in administrative proceedings before the United States Department of Agriculture, with exclusive jurisdiction for review in federal district court.

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Issue

May raisin farmers raise the Takings Clause as a defense to a USDA order requiring them to pay a monetary equivalent to a portion of their crop, or must they litigate non-takings defenses in the government enforcement action, pay the disputed amount to the government if liable, and then file suit in the Court of Federal Claims to recover their money?

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Evans v. Michigan

A Michigan trial court granted defendant-petitioner Lamar Evans a directed verdict of not guilty after the State of Michigan charged him with burning property because the State of Michigan failed to prove that the property Evans allegedly burned was not a dwelling. Upon appeal, the Michigan Supreme Court determined that the trial court erred when it required the State of Michigan to prove that the property was not a dwelling. Furthermore, the Michigan Supreme Court held that the Double Jeopardy Clause of both the Fifth Amendment and the Michigan Constitution did not bar Evans’ retrial for the same offense because the error involved an element that was added to the offense. As a result, the directed verdict did not relate to an actual factual element of the case and therefore failed to address Evans’ guilt or innocence of the charged offense. Evans now appeals to the Supreme Court of the United States, arguing that the Michigan Supreme Court erroneously carved out a novel “Extra Element” exception to the Double Jeopardy Clause. This decision will further define the outer limits of protection that the Double Jeopardy Clause offers to defendants and the types of rulings that prosecutors can appeal. 

Questions as Framed for the Court by the Parties: 

Does the Double Jeopardy Clause bar retrial after the trial judge erroneously holds a particular fact to be an element of the offense and then grants a mid-trial directed verdict of acquittal because the prosecution failed to prove that fact?

Issue

Does the Double Jeopardy clause bar retrial when the trial judge directs a verdict of acquittal because the prosecution failed to prove a fact that was ultimately not an element of the charged crime?

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Arkansas Game and Fish Commission v. United States (11-597)

Petitioner, the Arkansas Game and Fish Commission (the “Commission”) sued Respondent, the United States, for a violation of the Takings Clause of the Fifth Amendment, which compels the government to compensate parties when the government physically seizes property. Specifically, the Commission argues that the United States Army Corps of Engineers (the “Corps”) permanently destroyed trees in a bottomland hardwood forest in Arkansas by intermittently flooding the forest for six years. The United States asserts that the actions of the Corps did not constitute a taking because the Corps did not oust the Commission of possession of the forest, and only a continuous invasion qualifies as a physical taking. The Supreme Court’s decision in this case will determine whether a temporary invasion is a taking which will affect the meaning of the Takings Clause as it is used in future disputes concerning the destruction of property. 

Questions as Framed for the Court by the Parties: 

Petitioner Arkansas Game & Fish Commission, a constitutional entity of the State of Arkansas, sought just compensation from the United States under the Takings Clause of the Fifth Amendment for physically taking its bottomland hardwood timber through six consecutive years of protested flooding during the sensitive growing season. The Court of Federal Claims awarded $5.7 million, finding that the Army Corps of Engineers' actions foreseeably destroyed and degraded more than 18 million board feet of timber, left habitat unable to regenerate, and preempted Petitioner's use and enjoyment.

The Federal Circuit, with its unique jurisdiction over takings claims, reversed the trial judgment on a single point of law. Contrary to this Court's precedent, a sharply divided 2-1 panel ruled that the United States did not inflict a taking because its actions were not permanent and the flooding eventually stopped. The Federal Circuit denied rehearing en banc in a fractured 7-4 vote.

The question presented is: Whether government actions that impose recurring flood invasions must continue permanently to take property within the meaning of the Takings Clause.

Issue

Under the Fifth Amendment, does temporary, government-induced flooding require compensation to the owner of the flooded property?

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