Allegations of racial bias in a death penalty trial

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The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

We had another week of complete turnover as Monday’s order list disposed of all the new relists discussed in our last installment. In Securities and Exchange Commission v. Cochran, the justices will decide whether federal district courts have the power to consider claims challenging the constitutionality of the commission’s administrative law proceedings. The case is sufficiently similar to Axon Enterprise, Inc. v. Federal Trade Commission (which involves essentially the same issue for that agency’s administrative process) that the court seems likely to hear both together next fall. That will reunite former Solicitor General Paul Clement (Axon’s lawyer) with his former #2 Greg Garre (Cochran’s lawyer), who succeeded him in that post.

The justices also granted review in Jones v. Hendrix, in which they will consider whether district courts have authority to review a claim that a federal prisoner’s sentence is invalid, when circuit precedent foreclosed the claim at the time of the prisoner’s prior habeas corpus motion, but an intervening Supreme Court precedent changed the construction of the statute and held that new interpretation applies retroactively. The court will hold the other case raising that question, Ham v. Breckon, pending the outcome in Jones.

This week we have only one new relist: Thomas v. Lumpkin, involving an African American prisoner on death row for killing his estranged wife, who was white, and their children. Although the court considered the case as a group for the first time at last Thursday’s conference, it appears to have had the attention of at least one of the justices for quite a while, as the court has rescheduled it a dozen times since January.

Petitioner Andre Thomas contends he was denied his constitutional right to be tried by an impartial jury because three jurors at his trial expressed opposition to people of different races marrying and having children, writing on their jury-selection questionnaires that such relationships are “against God’s will,” that people should “stay with [their] Blood Line,” and that the children of interracial relationships are denied “a specific race to belong to.” Those jurors, Thomas says, never disclaimed those views or said they could set them aside in considering his case. Thomas also argues that he was denied his constitutional right to the effective assistance of counsel because his lawyer did not object to, or seek to strike, any of those jurors, and failed to ask two of them a single question about their bias.

The state of Texas contends the state court decisions upholding Thomas’ conviction and sentence were not objectively unreasonable because the jurors agreed to decide the case based on the evidence presented and follow the law as instructed, and the challenged jurors made other statements suggesting they might be favorable to the defense (for example, saying it would be wrong to execute the mentally ill, and saying that they admired defense counsel). The state argues that Thomas’ defense counsel made a strategic decision not to pursue the jurors’ statements in light of those countervailing factors.

This case is sufficiently fact-bound that I don’t expect the court to grant plenary review and set the case for argument. It seems likelier we’ll get some kind of opinion from the court, either a summary reversal or an opinion respecting denial.

That’s all for this week. Until next time, stay safe!

New Relist

Thomas v. Lumpkin, 21-444
Issues: (1) Whether, under the Supreme Court’s clearly established precedent, Andre Thomas—an African American man who, during a schizophrenic episode, killed his estranged white wife, their son, and her daughter— was denied his constitutional right to be tried by an impartial jury, when three jurors at Thomas’s capital trial expressed opposition to people of different races marrying and having children—writing on their voir dire questionnaires that such relationships are “against God’s will,” that we should “stay with our Blood Line,” and that the children of interracial relationships are denied “a specific race to belong to”—and when the jurors never disclaimed those views or said they could set them aside to consider Thomas’s mental illness and make the individualized sentencing judgment required by the Constitution; and (2) whether Thomas was denied his constitutional right to the effective assistance of counsel, when defense counsel did not object to, or seek to strike, any of those three jurors, and failed to ask two of them a single question about their bias.
(rescheduled before the Jan. 7, Jan. 14, Jan. 21, Feb. 18, Feb. 25, March 4, March 18, March 25, April 1, April 14, April 22 and April 29 conferences; relisted after the May 12 conference)

Returning Relists

Andrus v. Texas, 21-6001
Issues: (1) Whether, on remand, the Texas court rejected the Supreme Court’s conclusions in Andrus v. Texas, which were amply supported by the habeas and trial records, and whether the Texas court disregarded the Supreme Court’s express guidance for conducting a prejudice analysis pursuant to Strickland v. Washington; and (2) whether the Texas court’s failure to adhere to the Supreme Court’s decision conflicts with our constitutional system of vertical stare decisis and creates widespread confusion regarding the proper legal standard that courts must use in assessing whether the Sixth Amendment right to effective assistance of counsel is violated in death-penalty cases.
(rescheduled before the Jan. 14, Jan. 21, Feb. 18, Feb. 25, March 4, and March 18 conferences; relisted after the March 25, April 1, April 14, April 22, April 29 and May 12 conferences)

Cope v. Cogdill, 21-783
Issues: (1) Whether jail officials who are subjectively aware of a substantial risk that a pretrial detainee will attempt suicide and respond to the harm unreasonably may be held liable when their violation was obvious — as the U.S. Courts of Appeals for the 1st, 4th, 7th, 8th, 9th, and 11th Circuits have held — or whether jail officials who respond unreasonably to the obvious risk should be granted qualified immunity in the absence of a case involving the same facts — as the U.S. Court of Appeals for the 5th Circuit held below; (2) whether the objective standard the Supreme Court announced in Kingsley v. Hendrickson applies to inadequate-care claims brought by pretrial detainees — as the U.S. Court of Appeals for the 2nd, 6th, 7th, and 9th Circuits have held — or whether the subjective standard that applies to convicted prisoners also applies to pretrial detainees — as the U.S. Courts of Appeals for the 8th, 10th, and 11th Circuits have held and as the 5th Circuit held below; and (3) whether the judge-made qualified immunity doctrine requires reform.
(relisted after the April 1, April 14, April 22, April 29 and May 12 conferences; record requested and received after the April 22 conference)

Grzegorczyk v. United States, 21-5967
Issue: Whether Zenon Grzegorczyk is entitled to relief on his claim that knowingly using a facility of interstate commerce with intent that a murder be committed, in violation of 18 U.S.C. § 1958(a), is not a crime of violence under 18 U.S.C. § 924(c).
(relisted after the April 14, April 22, April 29 and May 12 conferences)

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