This morning, the U.S. Supreme Court released this orders list from last Friday’s conference. The Court took up the case of Cruz v. Arizona, No. 21-846. The case involves the familiar scenario of a murderer who could have made a particular objection at trial or on direct appeal but did not. When he tries to raise in a collateral attack on the judgment, the state court tells him it is too late. As usual, the issue has nothing whatever to do with whether the defendant committed the crime. It only relates to whether he should receive the punishment his crime deserves or whether justice should be tempered with mercy to let him off with less than he deserves.
From the state’s brief in opposition:
On the day he was killed, Officer Patrick Hardesty was questioning [John] Cruz as part of a hit-and-run investigation. App. 2a. During the questioning, Cruz ran from Officer Hardesty and Officer Hardesty gave chase on foot. Id. at 202–03, ¶¶ 2–4. At some point during the chase, Cruz shot the officer five times, emptying the five-shot revolver he was carrying. Two shots struck Officer Hardesty’s protective vest, two others struck him in the abdomen below the vest, and one entered his left eye, killing him almost instantly. Id. at 203, ¶¶ 5–7. Four of the shots were fired from no more than a foot away. Id. at 203, ¶ 6.
Cruz claims that the jury should have been told he would not be eligible for parole if they gave him life in prison. The Supreme Court precedent on that point was decided nine years before the crime. Cruz’s trial attorney did not request such an instruction, even though the trial judge offered one while denying a related motion, and his appellate attorney did not make that objection on direct appeal.
This is familiar turf for CJLF. We played a role in developing the rules that generally prohibit this kind of “heads I win, tails we take it over” gamesmanship.
Another case that the Court turned down, with comments from Justices Alito, Thomas, and Gorsuch, is Texas v. Commissioner of Internal Revenue, a civil case that touches on one of my pet peeves. The case involves Medicaid, a complicated system of a federal program run by states with federal reimbursement. Congress requires that programs be run on “a sound actuarial basis.” Sounds reasonable enough, but who decides what is “sound”? The federal agency that runs the program effectively outsourced the standards to a private organization. Justice Alito, joined by Justices Thomas and Gorsuch, notes that this raises a separation of powers problem that the Court should address in a proper case. This is not the proper case because Congress has repealed the tax that was the particular point at issue, but the standards problem lingers.
So what if the Court eventually says, “No, Dept. of Health and Human Services, you can’t outsource a standard in the law to a private organization”? The Court itself did exactly that, over CJLF’s vehement objection, in Moore v. Texas. It outsourced to the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association the standard for deciding who is exempt from capital punishment under the Eighth Amendment as “intellectually disabled.” See this post on the archive blog. I do hope they take up the Medicaid issue in an appropriate case or, better yet, revisit Moore directly on that point.
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