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For IMMEDIATE RELEASE September 27, 1994

WASHINGTON -- As in prior years, the pre-October Supreme Court docket contains a number of criminal matters. Three involve death-sentenced prisoners; a fourth, which does not, raises a question of habeas doctrine, as does one of the capital cases. If past history is any guide, the number of appeals in the capital and habeas categories will have doubled by the end of the Term.

The ACLU and others against the death penalty will be closely watching our newest Associate Justice, Stephen Breyer. His replacement of Justice Blackmun -- who had come to oppose this punishment as fiercely as Justices Brennan and Marshall -- cannot, of course, improve the prospects of death row litigants. But I predict that Justice Breyer, as new to the area as Justice Ginsburg a year ago, will, like her, adopt a moderate and open-minded approach to the issue.

Two of the pending capital cases, Schlup v. Delo and Kyles v. Whitley, present variations on a theme of increasing concern to the Court: factual innocence. Schlup, who was held to have forfeited a claim of ineffective assistance of counsel, sought to overcome this barrier by demonstrating his "actual innocence" to qualify for the "miscarriage of justice" exception to the rigorous rules barring habeas access to prisoners with procedurally defaulted, successive or abusive contentions. Confronted with precedents (Sawyer v. Whitley (1992) and Kuhlmann v. Wilson (1986)) arguably facing in different directions, the Court must determine whether the petitioner need only make a "colorable showing of factual innocence" or whether he has to adduce "clear and convincing evidence" that, but for constitutional error, no reasonable juror would have found him guilty.

While the issue is technical, the facts of this prison murder case are extremely compelling. Schlup's proof includes a videotape that places him far from the scene of the killing at the relevant time, and 18 witnesses -- with no motivation to lie for him -- who swear that he took no part in the crime. In these circumstances, the Court may have granted review as much to redress blatant injustice as to clarify legal principles.

That hypothesis plainly supports the decision to hear Kyles's intensely fact-bound appeal. Urging inadequacy of counsel and the withholding of exculpatory evidence, Kyles poses no novel questions. yet Judge King's dissenting statement in the Fifth Circuit ("For the first time in my fourteen years on this court ... I have serious reservations whether the State has sentenced to death the right man") surely provided cause for concern in the minds of at least four of the justices.

The non-death penalty habeas case, O'Neal v. McAninch, builds, like Schlup, on recent precedent. Brecht v. Abrahamson (1993), held that a federal court should sustain a state conviction despite constitutional error that could not be proven harmless beyond a reasonable doubt pursuant to the then-prevailing test. In the habeas setting, a flawed conviction would be preserved on the lesser showing that the error did not have "substantial and injurious effect or influence in determining the jury's verdict." O'Neal presents the question whether the state or the prisoner bears the burden of proof on prejudice under Brecht's diluted standard. The ACLU urges that Brecht does not prevent, and general principles of law compel, placing this onus upon the state -- where it has traditionally rested.

In the general criminal area, Arizona v. Evans is potentially the most important case on the current docket. The Arizona Supreme Court affirmed the suppression of marijuana seized from the defendant's car when an officer took him into custody after a computer check, made during a traffic stop, disclosed an outstanding misdemeanor warrant for his arrest. Later, it turned out that the warrant had been quashed. The state contends that suppression was improper because the officer reasonably relied on the ostensible warrant, whose continued presence in the computer resulted from an error by court personnel rather than police. The ACLU argues that the limited exception to the exclusionary rule, fashioned in United States v. Leon (1984), cannot salvage this concededly illegal seizure since Leon applies solely to actions grounded on a defective warrant -- not on a non-existent one.

For many years, the Court has been blatantly hostile to Fourth Amendment claims. If it upholds the state's position, it will have gone far toward adopting the global "good faith" exception that the exclusionary rules's opponents have tried, persistently if unsuccessfully, to get the Congress to enact.

A final cases bears brief mention as an indicator of the Court's interest in exploring issues regarding the state of mind required for conviction under various federal criminal statutes. The Ninth Circuit, in United States v. X-Citement Video Inc., struck down a law barring distribution of child pornography that failed, according to the panel majority, to include as an element knowledge of the actor's underage status. It is likely that the justices, agreeing with the Solicitor General, will construe the statute to require "scienter," or knowledge, to avoid constitutional problems. If they do so, this decision (First Amendment concerns aside), would form part of a series in which the Court has rejected a strict liability interpretation -- the one usually advanced by the government.

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