FW: The Supreme Court Today

[John Noble]

At 3:59 PM -0500 3/26/01, Edward Hartnett wrote:
>Mark Tushnet had asked earlier if anyone knew what was going on with
>this case in which the court vacated the stay issued by the court of
>appeals and then issued its own stay.   Not having seen any answer
>(maybe I missed it) but quite interested in it, I'll try asking
>again.  Anyone know what's up with this?  Did Richardson's
>application for a stay reveal information (perhaps a claim about the
>state of the record?) that was not revealed in opposition to the
>state's application to vacate the court of appeals' stay?

The 8th Cir. stay was granted pending the SC's ruling in Penry II
"and until further order" of the 8th Cir. just hours after the 8th
Cir. denied a stay of execution in connection with a petition to file
a successive habeus petition. The issue below was whether Penry I
entitled Richardson to introduce a psychiatric evaluation prior to
sentencing by the judge. But the issue is complicated by the fact
that the judge did the sentencing pursuant to Missouri law after the
jury was unable to agree on a sentence. Richardson's counsel declined
to introduce the psychiatric evaluation at the sentencing hearing
before the jury (because it had some harsh things to say about
Richardson), and the 8th Cir. ruled that the judge was not required
to re-open the record and receive the evaluation after he took over
sentencing when the jury failed to agree. At the end of the day, and
it all happened during one day: the 8th Cir. refused to stay
execution based on Penry I, but agreed to stay execution pending the
outcome of Penry II; the SC vacated the decision to stay execution
pending Penry II, and agreed to stay execution pending disposition of
the challenge to the 8th Cir. rejection of the Penry I claim. The
Supreme Court vacated the 8th Cir. stay 6-3, and granted its own stay
5-4.  There were likely 4 votes on the merits of the SC stay, and a
courtesy vote to preserve jurisdiction by preserving the petitioner.

Maybe two things are going on. A partial explanation may be that the
practice of providing a courtesy vote to preserve SC jurisdiction
does not extend to ruling on the state's motion to vacate the 8th
Cir. stay -- in which case there were not enough votes to uphold the
8th Cir. stay, but there were enough votes to grant the SC stay.
Whether that's right or not, it doesn't explain why there were 6
instead of 5 votes to vacate the 8th Cir. stay. At least one justice
voted for the SC stay on the merits and voted to vacate the 8th Cir.
stay. The fact that the 8th Cir. stay preserves the 8th Cir.'s
jurisdiction to revisit the case in light of Penry II, rather than
pending the grant or denial of cert on the Penry I claim, may be the
reason. It preserves jurisdiction which the 8th Cir. no longer has,
pending a decision which the SC might render before or after it
grants or denies Richardson's petition. Richardson doesn't need a
stay pending SC disposition of Penry II -- he needs a stay pending SC
disposition of his own case. Also, the 8th Cir. stay, by its terms,
required the 8th Cir. to await the decision in Penry II even if the
SC sooner denies Richardson's petition for cert. That allows for the
awkward possibility that the SC might deny cert, implicitly ruling
that he doesn't have a claim and should die, subject to an 8th Cir.
ruling that Penry II requires re-sentencing. If the SC wants the 8th
Cir. to revisit the case in light of Penry II, they will grant,
vacate and remand. But they don't want to be second-guessed by the
8th Cir. if they deny cert.