Supreme Court Update: Clark v. Sweeney (No. 25.-52) And Pitts v. Mississippi (No 24-1149)

Greetings, Court Fans!

You may have noticed that we haven't quite worked up the resolve to start summarizing all the Supreme Court's activities on its interim-orders docket, despite the now imperceptibly fine line between many interim orders and merits opinions. In the meantime, though, we are (re)committed to summarizing every merits decision, no matter how small.

Read on, then, for summaries of the first two merits decisions of OT25: Clark v. Sweeney (No. 25.-52) and Pitts v. Mississippi (No 24-1149), both per curiam GVRs correcting lower court errors on matters of criminal and appellate procedure. After all, anyone at the Thanksgiving table can bloviate on the Court's interim decision permitting the Trump Administration to continue requiring all new passports to display an individual's biological sex at birth; only true Court Fans will be able to expound on the principle of party presentation in habeas appeals.

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In Clark v. Sweeney (No. 25.-52), a unanimous Court chastised the Fourth Circuit for straying from the principle of party presentation in ordering a new trial for a habeas petitioner on grounds he hadn't raised in his appeal.

Jeremiah Sweeney was charged with second-degree murder after allegedly shooting a bystander during an argument with neighborsa about stolen drugs. His defense at trial was that he could not have been the shooter, given the relative locations of himself and the victim and the angle of the bullet wound. After the prosecution rested its case, Juror 4 decided to visit the crime scene himself, to get a better sense of what had only been presented to the jury via a diagram. The next day, as the jury began deliberating, the rogue juror told the others about his field trip, and they promptly reported it to the judge. After briefly questioning Juror 4 (but not the others) and discussing the situation with the prosecutor and Sweeney's counsel, the judge decided to dismiss Juror 4 and allow the remaining 11 jurors to proceed with their deliberations, rather than declare a mistrial. Not long thereafter, the remaining 11 returned a conviction.

After unsuccessfully exhausting his direct appeals, Sweeney filed a petition for postconviction relief in state court. He argued that his lawyer was constitutionally ineffective for failing to question the entire jury to ensure that none of the remaining 11 were tainted by Juror 4's excursion. The state court rejected the claim, and Sweeney proceeded to file a federal habeas petition, now with the assistance of appointed counsel. Once again, he focused his petition on the narrow IAC claim concerning his lawyer's failure to voir dire the entire jury. The District Court denied the petition, concluding the state court's application of Strickland v. Washington (1984) was not objectively unreasonable. The Fourth Circuit, however, reversed. In its (unpublished, 46-page) opinion, the Fourth Circuit majority held that Sweeney's trial was marred by a "combination of extraordinary failures from juror to judge to attorney," which deprived Sweeney of his right to be confronted with witnesses against him and to be tried by an impartial jury. The Fourth Circuit ordered a new trial, over a dissent that criticized the majority for "flout[ing]" the principle of party presentation.

The State's petition for certiorari struggled to identify a circuit split on a significant legal question, and directly called on the Supreme Court to summarily reverse the Fourth Circuit. And that is what the Court did. In a brief per curiam order, the Court held that the Fourth Circuit had "transgressed the party-presentation principle by granting relief on a claim that Sweeney never asserted and that the State never had the chance to address." This "radical transformation of Sweeney's simple ineffective-assistance claim departed so drastically from the principle of party presentation as to constitute an abuse of discretion," warranting summary reversal.

Not all is lost for Sweeney, as the Court ordered the Fourth Circuit to squarely address his actual IAC claim (under the deferential habeas standard) on remand. That said, having poked around in the record below, there may be a reason the Fourth Circuit majority shied away from that claim. It appears that Sweeney and his lawyer made a strategic decision to go forward, believing that anything Juror 4 might have shared with the remaining jurors was just as likely to benefit Sweeney as to harm him, and that they had a better chance with the remaining eleven than with a new jury at a new trial. That may explain not only why the Fourth Circuit majority felt compelled to introduce some additional errors into the analysis, but also why all nine Justices were on board with what would otherwise appear to be an unusual and unnecessary excursion into error correction.

In Pitts v. Mississippi (No 24-1149), the Nine summarily reversed a Mississippi Supreme Court decision that effectively ignored the Court's decisions in Coy v. Iowa (1988) and Maryland v. Craig (1990), which require trial courts to make case-specific findings of necessity before precluding a criminal defendant from exercising his Sixth Amendment right to confront child witnesses "face to face."

Jeffrey Pitts was convicted of sexually abusing his daughter, after a trial at which the child was permitted to testify against Pitts from behind a screen. Pitts objected to the screen as a violation of his Sixth Amendment right to confrontation, but the trial judge overruled the objection based on a Mississippi state law that gives child witnesses the "right" to testify behind a "screen that ... obscure[s] the child's view of the defendant." On appeal, the Mississippi Supreme Court acknowledged that the trial court had failed to make a case-specific finding that the screen was necessary, as required by the U.S. Supreme Court's decisions in Maryland v. Craig (1990) and Coy v. Iowa (1988), but held that those decisions don't apply where a state statute effectively mandating screening provides the finding of necessity.

The Supreme Court unanimously reversed, in a per curiam order reiterating its binding confrontation-clause precedent: "Under Coy and Craig, a trial court may not deny a defendant his Sixth Amendment right to meet his accusers face to face simply because a statute permits screening. Nor may a court authorize screening based on generalized findings of necessity underlying such a statute. Instead, the Sixth Amendment tolerates screening in child-abuse cases only if a court hears evidence and issues a case-specific finding of the requisite necessity." That didn't happen in Pitts's case, and the big Supreme Court was thoroughly unimpressed with the little Supreme Court's conclusion that a state law can somehow override its decisions on the supreme law of the land. "When state law conflicts with the Federal Constitution, the latter controls."

This full-throated and unanimous re-endorsement of a fairly controversial, pro-defendant constitutional principle is noteworthy, particularly given that certain Justices have recently expressed reservations about other confrontation-clause decisions. Perhaps to ensure that unanimity, the Court closed its per curiam GVR with a reminder that confrontation-clause violations are not structural errors, but trial errors subject to harmless-error review. The Nine thus expressly invited the Mississippi Supreme Court to consider whether the error here warrants a new trial. While it is the prosecution's burden to show that an error is harmless, practically speaking, Pitts will have to show that the screen contributed to his conviction; and, even if he does, his reward will likely be a new trial at which the judge will have substantial discretion in making a "case specific" finding that the screen is necessary.

While Mr. Pitts's victory may be short-lived, it's nevertheless nice to see a unanimous Supreme Court endorse one of its older and more controversial constitutional decisions. Whether this "happy family" dynamic endures beyond Thanksgiving is another question...

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