In the Supremes

SCOTUSblog and Prof. Berman have identified a significant number of criminal law cases on the card for this coming new season. Several struck me as potentially relevant to military justice practitioners.

The term opens by focusing on the Sixth Amendment’s right to “Assistance of Counsel.”
The very first oral argument of the term should feature some fun hypotheticals, and prove to be extremely important for the conduct of criminal trials. Villarreal v. Texas presents an exercise in constitutional line-drawing between two Sixth Amendment precedents. When a trial court recesses for the day while a criminal defendant is testifying, may a trial court bar defense counsel and their client from discussing the defendant’s testimony overnight? One might think that the “assistance of counsel” would be particularly important at such a stage. However, two precedents, decided by two very different alignments of justices 12 years apart, point in opposite directions.

A Fourth Amendment case: what level of suspicion of an “emergency” must law enforcement have to enter a house without a warrant?
When William Trevor Case’s ex-girlfriend told the police that Case was threatening suicide, the police knew Case well and that he had tried to stimulate “suicide by cop” before. After waiting and debating for some 40 minutes outside Case’s house, officers entered, without attempting to get a warrant. The entry is what is at issue in this case; with many post-entry facts in play, Case was later convicted of assault of an officer after a motion to suppress evidence – found after the warrantless entry of his house – was denied. The Montana Supreme Court affirmed, 4-3.

Barrett v. United States (Oct. 7): Does the Fifth Amendment’s double jeopardy clause permit two (consecutive) sentences for the same federal robbery act that violates two criminal provisions?