SCOTUS Thursday

* "Splitting 5-4, the Supreme Court ruled Thursday that an individual whose criminal conviction has become final does not have a constitutional right to gain access to evidence so that it can be subjected to DNA testing to try to prove innocence." The majority opinion and concurring opinions issued with it signal a sharp hostility to post-conviction review. Most notably, Justice Kennedy, whose opinion almost always carries the day on criminal justice issues with a discernable partisan tinge, joined in a concurring opinion stating that any constitutional right to DNA evidence must be preserved at trial and sought in habeas corpus proceedings, rather than a civil rights lawsuit.

Expect a follow up case to determine if a failure to request DNA evidence at trial can constitute ineffective assistance of counsel in some circumstances, rather than constituting a tactical decision as Justice Kennedy found that it did in this case.

This case also solidifies the notion that what is procedurally sensible in a habeas corpus review designed primarily to determine if a defendant's constitutional rights were violated at trial makes less sense in dealing with post-convictiono affirmative exoneration/innocence on the merits claims.

* Voting 6-3, the Court found that "if a jury finds an individual not guilty on some counts, but can’t agree on the others, prosecutors may not try that individual again on the “hung” counts if they had a common element with those on which the jury acquitted. The ruling came in a case growing out of the Enron Corp. scandal . . . . The Court, however, did not overturn the conviction on charges of insider trading and money laundering, but returned the case to the Fifth Circuit Court for further analysis."

This decision bodes well for other Double Jeapordy cases in the pipeline, but the summary is a bit confusing. What constitutes a "common element" is often not obvious and the 5th Circuit will have to parse that issue on remand. I've previously blogged a cert application in a double jeapordy case out of Washington State involving a jury that convicted on lesser charges without resolving more serious charges, but without being formally hung. Today's ruling may indicate that the Court will look favorably upon the Washington State case.

* Ruling 5-4 held that: "It is up to the worker to prove that age was the decisive factor in the action taken by the employer, even if there is some evidence that the worker’s age was one factor behind the move. Juries in Age Discrimination in Employment Act cases . . . may never be told that, if there is some evidence of age bias, the burden then shifts to the employer to prove that the action would have been taken anyway."

This ruling appears to be a genuine change in the practical standard of proof in these cases. "Decisive factor" seems more stringent than the requirement that age be a "but for" factor under prior law. It also seems to offer employers the best of both worlds, with pre-trial standard amendable to favorable rulings in motions for summary judgment, and a trial standard that tends to sway juries towards defendants. It would not surprise me to see Congress once again amend the discrimination laws to overrule this decision in favor of employees (one of the very first laws signed by President Obama overruled a recent SCOTUS decision on the statute of limitations in employment discrimination cases), particularly because the basic structure of the analysis is similar to that in all discrimination claims.

* Ruling 7-2 held that "the bankruptcy court that had approved a settlement of one facet of the reorganization plan for asbestos maker Johns Mansville Corp. had the authority to block some lawsuits filed years later dealing with that part of the plan."

The Court has ten argued cases left to release opinions in before SCOTUS goes on summer vacation, the next batch coming Monday. Tea leaf readers can start to make some meaningful predictions about how the straggler cases will come out based upon judicial opinion assignments to date. End of term decisions tend to be close and significant.

From SCOTUS Blog.