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Around January 2004, Donnie Ray Ventris was arrested and charged with the murder, burglary, and robbery of Ernest Hicks. At his trial, the prosecution offered the testimony of Ventris's cellmate, whom the prosecution had recruited to uncover incriminating information from Ventris. This testimony was obtained in violation of Ventris's Sixth Amendment right to counsel because his counsel had not been present at the time, nor had he waived his right to counsel beforehand. The trial court therefore did not allow the prosecution to use the testimony in its case-in-chief. It did, however, let the prosecution use the testimony for impeachment purposes. Eventually, Ventris was acquitted of felony murder but convicted of robbery and burglary. The Kansas Court of Appeals affirmed. The Kansas Supreme Court, however, reversed because it held that Ventris's statements to his cellmate should not have been admitted for any purpose, including impeachment. The U.S. Supreme Court will now decide whether voluntary statements obtained in the absence of a waiver of one's Sixth Amendment right to counsel can be used for impeachment purposes. The Court's decision will impact the procedural fairness and truth-finding function of criminal trials.

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Michael Marsh was convicted and sentenced to death for the 1996 murders of Marry Ane Pusch and her 19-month-old daughter, M.P. Certain mitigating evidence was presented at his sentencing trial. The court weighed this mitigating evidence against the aggravating evidence and determined that the balance of the evidence was equal. Under the Kansas death penalty statute, K.S.A. 21-4624(e), in such a situation where the evidence is “in equipoise,” the tie goes to the State. Therefore, Marsh was sentenced to death. On appeal, the Kansas Supreme Court reversed Marsh’s death sentence, finding that K.S.A. 21-4624(e) was, on its face, unconstitutional and a violation of the Eighth Amendment due to the fact that it did not require a jury to find that aggravating circumstances outweigh mitigating circumstances in order to impose the death penalty.

Marsh seeks for the Supreme Court to uphold the Kansas Supreme Court ruling. He argues that the Kansas Supreme Court was correct in holding in State v. Kleypas, 272 Kan. 894 (2001), that the Kansas equipoise provision violates the Eighth Amendment because it removes a jury’s obligation to make a sentencing decision based on the individual characteristics of the defendant and the circumstances of the case. Brief for Respondent at 10. According to Marsh, this contradicts the Eighth Amendment’s requirement of individualized capital sentencing. However, the State argues that a case previously decided, Walton v. Arizona, 497 U.S. 639 (1990)controls the outcome. In that case, the equipoise concern was raised by the petitioner, but it was of no constitutional concern to the Court. Brief for Petitioner at 5. The State further argues that Kansas’ sentencing procedure does not offend the Eighth Amendment because the law narrows the class of death eligible defendants and places no restrictions on the admission of mitigating evidence. The State asserts that nothing in the Eighth or Fourteenth Amendments prevents Kansas from imposing the death penalty if aggravating evidence is not “affirmatively outweighed by mitigating evidence,” and that the decision of the Kansas Supreme Court should be reversed. Id. at 6.

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The Supreme Court will consider whether, in capital murder cases, jury  instructions given  in the penalty phase that  fail  to affirmatively state that mitigating circumstances need not be proven beyond a reasonable doubt violate the Eighth Amendment of the U.S. Constitution. See Brief for Petitioner, State of Kansas at i. Gleason argues that his Eighth Amendment right was violated  because  a problematic jury instruction, which lacked an affirmative statement about the appropriate burden of proof, likely precluded individual jurors from considering relevant mitigating evidence. See Brief for Respondent, Sidley J. Gleason at 11. On the other hand, Kansas maintains that Gleason’s Eighth Amendment right was not  violated,  because the jury properly applied the mitigating circumstances without confusion during deliberations. See Brief for Petitioner at 21–22. The Court’s decision could change how states instruct juries in capital murder cases and may lead courts to reexamine prior convictions. See Brief of Amici Curiae Criminal Justice Legal Foundation (“CJLF”) et al., in Support of Petitioner at 7–8.

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Since 1902, Kansas and Colorado have been disputing the proper use of the Arkansas River. Each time a new issue arises, the Supreme Court, which has exclusive jurisdiction over this type of case, has called upon a Special Master to hear the arguments and make a determination. In the most recent case, Kansas claimed that Colorado violated the Arkansas River Compact by depleting the river of water that the Compact reserves for Kansas. Extensive expert witness testimony was required in the case, and ultimately the Special Master ruled in favor of Kansas. The Special Master also decided that, in accordance with 28 U.S.C. § 1821(b), expert witness fees would be limited to $40 per day. Kansas, having spent more than $9 million dollars on expert witnesses throughout the case, disagrees with this determination, arguing that 28 U.S.C. § 1821(b) does not apply to cases in which the Supreme Court has original jurisdiction. The Supreme Court will decide whether it is bound by 28 U.S.C. § 1821(b) when hearing a case under its original jurisdiction or whether, as argued by Kansas, the Court is free to make its own determination regarding fees. 

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The Supreme Court will determine whether a joint capital-sentencing proceeding between two brothers and a jury instruction that does not affirmatively state mitigating circumstances “need not be proven beyond a reasonable doubt” violate the Eighth Amendment. See Brief for Petitioner, the State of Kansas at i. Kansas argues that the circumstances did not require severing the penalty hearings given the jury instruction and interrelated nature of the Carrs’ upbringing, and there is no affirmative duty to instruct juries that mitigating circumstances need not meet any particular burden of proof. See id. at 25, 54. Jonathan and Reginald Carr argue that severance was required because the sentencing proceeding was prejudicial, and the jury instructions were misleading and prevented the jury from properly weighing the mitigating circumstances. See Brief for Respondent, Jonathan D. Carr at 17–18, 43; Brief for Respondent, Reginald Dexter Carr, Jr. at 16, 34. The Court’s ruling will likely affect the severance standard used in multi-defendant capital punishment cases and how jurors are instructed in such cases. See Brief of Amicus Curiae The Promise of Justice Initiative (“PJI”), in Support of Respondents at 2; Brief of Amici Curiae Criminal Justice Legal Foundation (“CJLF”) et al., in Support of Petitioner at 7.

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The due process clause of the Fourteenth Amendment requires the government to give “reasonably calculated” notice to inform an affected party of an upcoming governmental proceeding. The issue before the Court is whether, when mailed notice of a tax sale or property forfeiture is returned undelivered, due process requires the government to take additional steps to locate the owner before taking the property. A holding that the government is required to take additional steps may subject the government to significant administrative burdens and undermine the process of transferring property rights. A holding that due process does not require the government to take additional steps may make property from tax sales more transferable, but may also deprive property owners of their constitutional right to due process.

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Tara Williams was on trial in California state court for special circumstances murder and firearm enhancement. During the trial, over Williams’s objections, the court dismissed a juror on the grounds that he was biased against the prosecution. After an alternate replaced the dismissed juror, the jury convicted Williams on both counts. Williams appealed, claiming that the juror’s dismissal had violated California state law as well as her Sixth Amendment rights. The California Court of Appeals affirmed Williams’ conviction, but only did so by addressing her state law claims, ultimately failing to explicitly discuss the Sixth Amendment issues raised. Williams then filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging a violation of her Sixth Amendment rights. Though the federal district court denied her petition, the United States Court of Appeals for the Ninth Circuit reversed, finding that Williams’ Sixth Amendment claim had not yet been “adjudicated on the merits” within the meaning of 28 U.S.C. § 2254(d). Warden Deborah K. Johnson appealed, claiming that the California Court of Appeals’ prior ruling was an adjudication on the merits and therefore precluded the subsequent habeas petition.  How the Supreme Court decides the case will determine the degree of deference a federal court hearing a petition for habeas corpus will give a state court decision that does not explicitly address the federal grounds for relief.

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After Petitioner Joel Judulang, a lawful permanent resident of the United States, was convicted of a deportable offense, the Board of Immigration Appeals determined that he was not eligible for a discretionary waiver of deportability under Section 212(c) of the Immigration and Nationality Act. On its face, Section 212(c) applies only to lawful permanent residents who are excludable when they attempt to enter the country, rather than to residents convicted of deportable offenses while already in the country. However, the Board of Immigration Appeals has previously allowed some permanent residents convicted of deportable offenses to apply for the Section 212(c) discretionary waiver. Petitioner Judulang asserts that he should be allowed to take advantage of the waiver, since his deportable offenses would render him excludable if he tried to re-enter the country. Judulang further argues that the Board of Immigration Appeals' change in Section 212(c) policy regarding deportable and excludable offenses is impermissibly retroactive and facially unconstitutional. The Department of Justice argues that the Board of Immigration Appeals has good reason to require a close textual similarity between a charged ground of deportability and a waivable ground of excludability, and that its policy is not impermissibly retroactive because it does not reflect a change in previous law. The Supreme Court’s decision in this case will mean the difference between amnesty and deportation for many lawful permanent residents convicted of deportable offenses.

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Lorenzo Jones and Timothy Williams both filed suit against the Michigan Department of Corrections on the grounds that the treatment they received in jail violated their Constitutional civil rights. The Circuit Court held that neither plaintiff fulfilled their requirements to totally exhaust available administrative remedies under 42. U.S.C. § 1997e of the PLRA. The Circuit Court held that Jones failed the exhaustion requirement because he failed to either describe or attach proof of how he exhausted administrative remedies in his complaint. See Jones v. Bock, 135 Fed at 839. Although Williams did attach proof of exhaustion to his complaint, the Circuit Court held that he still failed the PLRA’s exhaustion requirement because he did not specifically name the defendant in his initial grievance filings with prison officials. See Williams v. Overton, 136 Fed at 862. In these consolidated cases, Petitioners argue that the Circuit Court's holdings amount to judicially-created pleading requirements that are inconsistent with the PLRA’s text, the Federal Rules of Civil Procedure, and judicial norms. Respondents maintain that the PLRA instituted a “new regime” for inmate Civil Rights Act suits and that the text and structure of the PLRA require the Circuit Court’s heightened pleading requirements. See Brief for Respondents at 27-28. How the Supreme Court decides these condensed cases will reflect its view of the correct balance of burden between inmate plaintiffs and the judiciary. These cases will either require prisoners to be more vigilant in asserting their own civil rights or require the judiciary to be more active in defending prisoners’ rights.

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In 2004, Jerry Jones sued Harris Associates, L.P. under § 36(b) of the Investment Company Act for breach of its fiduciary duty with respect to the fees it receives for advising mutual funds of which Jones was a shareholder. Harris Associates created and advised the mutual funds in question. The board of trustees for the mutual funds approved the fees Harris Associates received. Jones’s case was dismissed on summary judgment in the Northern District of Illinois. The district court applied the Second Circuit’s Gartenberg v. Merrill Lynch Asset Management, Inc. standard to analyze the advising fees and found that the fees could have been the product of a normal, arms-length negotiation. The Seventh Circuit affirmed, but rejected the Gartenberg standard, and adopted a more lenient standard that allows court interference in fee arrangements only when there is evidence that the adviser failed to disclose relevant information or misled the board during fee negotiations. The Supreme Court’s decision will define the contours of a mutual fund adviser’s fiduciary duty with regard to compensation.

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