As the Judges Saw It
September-October 2007

U.S. Supreme Court edition

Tanya S. Dohoney

Assistant Criminal District Attorney in Tarrant County

Courtroom conduct

Matthew Musladin shot and killed Tom Studer outside of Musladin’s estranged wife’s home. While he admitted killing Studer, Musladin claimed he did so in self-defense. A jury rejected Musladin’s self-defense argument and convicted him of first-degree murder.

During the trial, several of Studer’s family members sported 2- to 4-inch buttons emblazoned with Studer’s photo while they sat on the front row of the courtroom gallery. On appeal, Musladin argued that the courtroom-displayed buttons deprived him of his 14th and 6th Amendment rights by eroding his presumption of innocence. After considering the influence of the spectators’ buttons, the California courts rejected the spectator-conduct claim. Ultimately, however, the Ninth Circuit Court of Appeals reversed.

What sayeth the Supremes?


This conviction stands, but the various opinions suggest prudence in the arena of courtroom conduct. Carey v. Musladin, 549 U.S. ___, 127 S.Ct. 649, 166 L.Ed.2d 482 (December 11, 2006) (6:3:0) (Thomas). Certain courtroom practices are so inherently prejudicial that they undermine the defendant’s right to a fair trial. For example, the compelled wearing of jail togs was previously found inherently prejudicial conduct which was not justified by any essential state policy. Estelle v. Williams, 425 U.S. 501, 503-06, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). On the flip side, another case found that the state-sanctioned seating of four uniformed state troopers right behind the defendant did not compromise fair-trial rights. Holbrook v. Flynn, 475 U.S. 560, 568, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986). At the time of this decision, no prior Supreme Court case reviewed the impact of courtroom-spectator conduct—as opposed to government-sponsored practices.

Justice Thomas’ majority opinion vacated the Ninth Circuit’s holding based upon the distinction between state-versus-spectator-sponsored behavior. This differentiation led the majority to find that the Ninth Circuit had overextended its habeas authority under 28 U.S.C. §2254(d)(1) because the state court’s decision was not contrary to nor an unreasonable application of clearly established federal law. Justice Thomas briefly noted the lack of prior guidance from the Supreme Court and the wide divergence among state-court decisions on spectator-conduct claims but, relying on §2254’s limitation, he left consideration of the merits of this issue for another day.

Three concurring opinions weighed in, however, voicing several concerns. Justice Kennedy’s decision to vote with the majority stemmed from his determination that the atmosphere at the instant trial was not one of severe coercion or intimidation. He suggested that the lack of guiding precedents on the issue stems from the fact that trial courts already institute careful measures to preserve courtroom decorum. Nonetheless, he suggested that a new rule should be considered after the issue percolates in state courts first. Above all, Justice Kennedy noted that judges should be committed to preventing an intimidating trial atmosphere because the fair and orderly administration of justice is of utmost importance.

Justice Souter also concurred. Contrary to finding a distinction, he believed that the Williams-Flynn line of cases applied to potentially unfair courtroom conditions because it is incumbent on trial courts to control lay persons in the courtroom. While pointing out that the buttons constituted an obvious appeal for victim/family sympathy, he found the record did not show that conditions had reached an unacceptable risk. He also discounted, yet wanted briefed, the spectators’ 1st Amendment interest.

In yet another concurrence, Justice Stevens suggested that the reliance on §2254 was an artifice (“dictum about dicta”) used repeatedly by a bare majority of the Court to reject constitutional claims. Stevens also disputed the existence of any spectator speech rights in the criminal trial context.

For Texas cases on this issue, see Nguyen v. State, 977 S.W.2d 450 (Tex.App.—Austin 1998) (upholding trial judge’s denial of defense request to have spectators remove buttons displaying victim’s photo), affirmed on other grounds, 1 S.W.3d 694 (Tex.Crim.App. 1999), and Davis v. State, 223 S.W.3d 466 (Tex.App.—Amarillo 2006, pet. ref’d, untimely filed) (rejecting defense complaints regarding multiple uniformed officers in gallery, along with spectators wearing medallions bearing the deceased officer’s photo).

Federal habeas

Convicted of rape, robbery, and burglary, Lonnie Lee Burton received a lengthy sentence in 1994 in accordance with Washington’s state sentencing guidelines. When one of his prior convictions was later overturned, the trial judge entered an amended judgment and sentence in 1996. Burton’s conviction was upheld on direct appeal, but his case was remanded for re-sentencing and, in December 1998, the trial court entered a second amended judgment of sentence.

While his direct appeal was pending in 1998, Burton filed a federal habeas petition under 28 U.S.C. §2254. The standard form he filled out warned applicants that they must ordinarily exhaust their available state-court remedies or risk a subsequent bar to presenting additional claims later. Burton nonetheless sought to challenge the constitutionality of his three convictions without addressing any sentencing issues. On the form, he listed the 1994 judgment date as what he contested. He also answered “yes” to the question about any pending appeal as to the judgment under attack and explained that he was appealing the sentence which was amended as a result of his direct appeal. Burton filed another federal habeas petition in 2002, this time contesting the 1998 judgment and challenging only the constitutionality of his sentence.

Was this a second/successive petition under the federal habeas corpus rules which required compliance with the gate-keeping requirements of 28 U.S.C. §2244(b)?


Yes. Burton v. Stewart, 549 U.S. ___, 127 S.Ct. 793, 166 L.Ed.2d 628 (January 9, 2007) (PC). Although the federal district court and the Ninth Circuit rejected the State’s jurisdictional claims regarding Burton’s failure to obtain a trial court order authorizing a second/subsequent petition as required under §2254’s gate-keeping provision, the Supreme Court reiterated that the goal of the Antiterrorism and Effective Death Penalty Act (AEDPA) is to streamline federal habeas corpus litigation and reduce piecemeal litigation. Burton’s first petition was not subject to dismissal as containing exhausted claims and was adjudicated on the merits. Because he neither sought nor obtained authorization for his second/successive petition, the district court lacked jurisdiction to consider the habeas claim.

Retroactivity of Crawford

Marvin and Laura Bockting lived in Las Vegas with their daughters Autumn and Honesty. Six-year-old Autumn awoke from a bad dream one night but refused to tell her mother about the dream, explaining that stepfather Marvin had threatened her not to tell. A subsequent rape examination revealed strong medical evidence disclosing that Autumn had not simply been dreaming about being sexually molested. Subsequently, Autumn described Marvin’s assaultive acts in detail to a detective and her mother.

When it came time for Marvin’s trial on four child-sex-abuse counts, Autumn’s distress prevented her from even being sworn in as a witness. A state statute authorized third parties to testify to the hearsay statements of a young child regarding sexual or physical abuse when the trial court rules that the child is either unavailable or unable to testify. Accordingly, both the mother and detective recounted Autumn’s statements to the jurors. Marvin’s conviction was affirmed on direct appeal in 1993 but, during the pendency of his habeas petition, the Supreme Court decided Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Does Crawford apply to this child-sex case which occurred more than 10 years earlier than the opinion?


No. Crawford will not be applied retroactively to cases on collateral review. Whorton v. Bockting, 549 U.S. ___, 127 S.Ct. 1173, 167 L.Ed.2d 1 (February 28, 2007) (9:0) (Alito).

The Teague v. Lane framework dictates that an old rule—one dictated by prior law—applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review. See Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Holding that Crawford was clearly a new rule, flatly inconsistent with prior governing precedent, i.e., Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the court also considered and rejected the two exceptions that authorize expanded applicability of new rules. In its analysis, the court stated that Crawford’s procedural rule reflects the Framers’ preferred mechanism (cross-examination) for ensuring that inaccurate out-of-court testimonial statements are not used to convict. The court contrasted the Crawford rule with the holding of Gideon, the only case ever identified by the Supreme Court as qualifying under the Teague “watershed” exception. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Finding the Crawford rule much more limited in scope than Gideon’s mandate to appoint counsel for indigents facing felony charges, the court also found that Crawford did not alter the understanding of bedrock procedural elements essential to the fairness of a proceeding. Unlike the sweeping and profound change Gideon implemented, the Crawford rule—while important—lacks the primacy required to fall within the Teague exception for watershed rules. Therefore, it does not apply to cases pending on collateral review when it was handed down.

Penry error

Dallas County prosecutors tried LaRoyce Lathair Smith for a brutal capital murder. His trial occurred after the Supreme Court’s first Penry decision. However, it predated the Texas Legislature’s enactment of an additional catchall special issue and the Supreme Court’s second Penry opinion. See Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (Penry I) and Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (Penry II). In an attempt to comply with Penry I, the Dallas County trial judge submitted a nullification instruction along with the statutory special issues. The additional charge allowed the jurors to answer no to the special issues if the mitigating evidence, taken as a whole, convinced the jury that Smith did not deserve the death penalty. After Smith’s trial with this additional nullification instruction, Penry II found a similar instruction flawed.

On direct review, the Court of Criminal Appeals affirmed Smith’s conviction, distinguishing the Penry precedents, and the Supreme Court summarily reversed. Reconsideration of the capital sentencing on remand to Austin resulted in another affirmance after the court relied, for the first time, on a preservation failure. Specifically, the court found that Smith’s pretrial claims regarding the unconstitutionality of the capital sentencing scheme failed to preserve a challenge to the nullification charge submitted and, therefore, the court applied the traditional Texas charging-error framework and held that Smith failed to show egregious harm warranting reversal. See Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985) (op. on reh’g) (preserved claims need only show “some harm,” but an egregious harm standard applies to unpreserved issues).

Which Almanza standard applies to error in Smith’s situation?


The lower standard of “some harm.” The Supreme Court again reversed. Smith v. State, 550 U.S. ___, 127 S.Ct. 1686, 167 L.Ed.2d 632 (April 25, 2007) (4:1:4) (Kennedy) and held that, while Smith raised a claim regarding the inadequacy of the unobjected-to nullification instruction, his primary complaint focused on the special issues preventing the jury from considering his mitigating evidence—Penry I error—which was preserved pretrial.

Justice Souter’s concurring opinion ponders whether a harmless-error analysis is ever appropriate when considering Penry I error.

Justice Alito’s dissent states that, after Penry I, defense counsel often twiddled their thumbs during charging conferences discussing how to cure Penry error. Those attorneys declined trial court invitations to sculpt a curative instruction and argued that Penry I simply prevented application of the death penalty scheme to their clients, many of whom faced evidence of aggravating factors that would lead to a death sentence regardless of the instructions submitted. In light of Smith’s failure to object to the trial judge’s attempt to cure the known federal constitutional defect in the instructions, Justice Alito considered the Court of Criminal Appeals’ application of Almanza correct. He bluntly observed that the majority’s decision allowed Smith’s counsel to sandbag the trial court.

A passenger’s standing during a traffic stop

Deputy Brokenbrough stopped a Buick driven by Karen Simeroth to check on a vehicle’s temporary registration tag. When talking to the driver, the deputy recognized the passenger as “one of the Brendlin” brothers and was aware that one of these siblings had skipped his parole supervision. The deputy asked for the passenger to identify himself, then returned to his patrol car, verified the existence of a no-bail parole warrant, and called for backup. During the wait, the deputy noticed Brendlin open and close his passenger-side car door. Once reinforcements arrived, the deputy ordered Brendlin out of the Buick at gunpoint and arrested him. The officers discovered an orange syringe cap on Brendlin during a search incident to his arrest; they also found syringes and a bag of a green leafy substance in a pat-down search of the driver, resulting in her arrest. A subsequent search of the car uncovered methamphetamine-production paraphernalia.

Brendlin was charged with possession and manufacture of methamphetamine. He sought to suppress the evidence by arguing that Deputy Brokenbrough lacked authority to stop the Buick. The trial judge rejected the suppression request after finding the stop lawful. The court also ruled that Brendlin had not been seized until he was ordered out of the Buick. Brendlin appealed this ruling after agreeing to a four-year sentence and pleading guilty.

The California Supreme Court upheld the conviction in spite of finding the deputy’s traffic stop invalid. The court specifically ruled that passengers are not constitutionally seized during a traffic stop, theorizing that the driver is the exclusive target of the police conduct and a passenger cannot submit to an officer’s show of authority while the driver controls the vehicle.

Does a traffic stop subject a passenger, as well as the driver, to a 4th Amendment seizure?


Yes. Brenlin v. California, 551 U.S. ___, 127 S.Ct. 2400, 168 L.Ed.2d 132 (June 18, 2007) (9:0) (Souter). When a police officer makes a traffic stop, a passenger of the car is seized for 4th Amendment purposes. In California v. Hodari D., the Supreme Court held that a police officer may make a seizure by a show of authority, without physical force, but that there is no seizure without actual submission. California v. Hodari D., 499 U.S. 621, 626, n.2, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). When an individual’s submission to a show of governmental authority involves his passive acquiescence such as in the case of a car passenger, the determination of whether the seizure occurred in response to authority turns on whether a reasonable person would have believed he was not free to leave considering the totality of the circumstances. Justice Souter opined that a sensible person would expect police officers stopping a vehicle to be exercising control over all of the vehicle’s occupants. Therefore, passengers—including Brendlin—may challenge the legality of the stop of a vehicle in which they ride.

This decision confirms opinions from almost every state’s courts, including Texas’. See Kothe v. State, 152 S.W.3d 54, 61 & n.19 (Tex.Crim.App. 2004). While passengers are constitutionally seized during a stop, however, they do not generally possess standing to challenge a vehicle’s search. See Jones v. State, 119 S.W.3d 766, 787 & n.54 (Tex.Crim.App. 2003).

Jurisdictional nature of notice of appeal

Keith Bowles beat Ollie Gipson to death in 1999 and received a sentence of 15 years to life imprisonment under Ohio law. After his federal habeas application was denied in 2002, he had 30 days to file a notice of appeal, but he missed the deadline. Federal law allows trial courts to extend the time for filing notice of appeal for up to 14 days under certain conditions. Bowles sought such an extension and, inexplicably, the trial court issued an order granting Bowles 17 extra days for filing his appellate notice. Bowles filed the day before the 17th day but after the statutory 14-day period.

Did the notice of appeal confer jurisdiction to hear Bowles’ case?


No. Bowles v. Russell, 551 U.S. ___, 127 S.Ct 2360, 168 L.Ed.2d 96 (June 14, 2007) (5:4) (Thomas). In spite of Bowles’ reliance on the district court’s order, the appellate court still had no jurisdiction. Justice Thomas, writing for the majority, explained that the timely filing of a notice of appeal is a jurisdictional requirement for which the court has no authority to create equitable exceptions. Thus, the unique circumstances of this case do not alter the finding of a lack of jurisdiction to entertain Bowles’ appeal. Note that no extension is available regarding the time for filing a state-court notice of appeal. Slaton v. State, 981 S.W.2d 208 (Tex.Crim.App. 1998).

Justice Souter’s bitter dissent described this case as an “intolerable” bait and switch.

Competency to be exectuted

Dressed in camouflage, Scott Lewis Panetti invaded his in-laws’ house and executed them in front of his daughter and estranged wife. A psychiatric evaluation prior to his capital trial revealed that Panetti suffered from a fragmented personality and that he experienced delusions and hallucinations for which he had been repeatedly hospitalized. Numerous extreme psychotic episodes were described. Nevertheless, the Texas state court ruled Panetti competent to stand trial and waive counsel. Stand-by counsel later described Panetti’s trial court behavior as bizarre, scary, and trance-like.

Later, when the trial judge set the execution date, Panetti contested his competency to be executed. Under Ford v. Wainwright, the 8th Amendment prohibits a state from carrying out a death sentence on an insane prisoner. Ford v. Wainwright, 477 U. S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). State-appointed experts determined that Panetti’s bizarre behavior was calculated and that he had a rational understanding of his execution.

Ultimately, however, the Supreme Court deemed the trial court preceding constitutionally inadequate under Ford and turned to the question of what constituted a rational understanding of being executed. For instance, if a capital defendant is aware of the government’s stated reason for his execution, but a mental disorder results in that defendant’s delusional belief that the government’s professed reason is a “sham,” does this delusion render him incompetent to be executed?


Yes. Panetti v. Quarterman, 551 U.S. ___, 127 S.Ct. 2842, 75 USLW 4628 (June 28, 2007) (5:4) (Kennedy). A prisoner’s awareness of the State’s rationale for his execution is not the same as a rational understanding of it, and a delusional belief regarding execution is relevant to the comprehension of the execution if it so impairs the prisoner’s concept of reality that he cannot reach a rational understanding of the reason for the execution. Expert evidence may clarify the extent to which severe delusions may render a defendant’s perception of reality so distorted that he should be deemed incompetent. Panetti’s case was remanded for further proceedings.

Justice Thomas’ four-vote dissent listed the myriad times that Panetti had been found competent and pointed out the spurious nature of the evidence supporting Panetti’s current incompetency claim (an unsworn physician’s letter containing no diagnosis and no discussion of execution understanding and a one-page declaration of the law professor who attended the doctor’s 85-minute session with the defendant). The dissent opined that this case should also have been poured out based upon federal habeas gate-keeping rules as a second/successive petition because Panetti failed to raise a Ford claim during his initial habeas application.