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Tuesday, June 20, 2006


Lost among yesterday's significant rulings on the Clean Water Act and the Confrontation Clause was a decision where the Supreme Court used a device familiar to kickball players everywhere: the do-over.

In Youngblood v. West Virginia, the 28-year old defendant was convicted of sexual assault and other offenses, after spending some time with three teenage girls.  His defense was that the sexual activity was consensual, and it wasn't frivolous.  On appeal, one of his claims was that the police covered up the existence of a note, written by one or more of the girls and found at one of the homes where the activity took place, which lent support to his defense. Youngblood didn't find out about the note until after his trial. 

West Virginia's highest court rejected his appeal, with the dissent  arguing that this was a clear Brady violation: the note should have been turned over to the defense, and Youngblood ought to get a new trial.

So Youngblood petitions the U.S. Supreme Court for cert, and yesterday's decision doesn't quite grant or deny cert. Instead, it uses the "GVR" device -- grant, vacate, remand -- providing the West Virginia Supreme Court of Appeals with the opportunity for a do-over on the Brady claim.  The main dissent in the West Virginia court was all about this Brady issue, but the West Virginia majority glossed over it, prompting the U.S. Supreme Court to indicate, though not in so many words, that they suspect this was a constitutional violation, but "it would be better to have the benefit of the views of the full Supreme Court of Appeals of West Virginia on the Brady issue."  Essentially: "Why don't you try that one again, maybe with a different answer."

As Scalia pointed out in dissent, it's a bit of a funny way to honor state sovereignty, and "better" is used here "much as a mob enforcer might suggest that it would be 'better' to make protection payments."  And though I'm no jurisdictional expert, Scalia's dissent arguing that there's no basis for this kind of result seems persuasive.  Scalia also speculates that one reason the Supreme Court didn't actually take the case might have been to avoid talking about oral sex in a Supreme Court opinion, which doesn't appear in Supreme Court Rule 10, though maybe it should.I assume this odd result is the product of a compromise, with at least a few of the liberals wanting to grant cert and reverse, and the rest just wanting to deny cert (I assume this is Scalia's desired result though it's not totally clear).  None of them probably, and understandably, wanted to take up the Court's time with an error-correction case like this one, and might have been concerned about a per curiam reversal that set Brady precedent without full briefing or oral argument. And that all seems reasonable enough.

On the other hand, if the case under review and up for reversal was a Ninth Circuit opinion ruling in favor of a criminal defendant, or an immigrant seeking asylum, or an off-duty cop who was fired for making online porn (see City of San Diego last term), I suspect the Roberts court wouldn't have worried as much about setting precedent without full briefing or oral argument.  This is just a scummy guy who got a constitutionally unfair trial, like a lot of people, and is now in jail serving a sentence of at least 26 years.  Let the West Virginia courts mess around with it for a while.

Posted by Jason Solomon on June 20, 2006 at 10:20 AM | Permalink


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» Error-Correction and the Roberts Court from De Novo
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