SCOTUS Decision Day Roundup: A Criminal Justice and First Amendment Jubilee

By Daniel A. Horwitz

The Supreme Court of the United States issued six opinions today, several of which may affect the development of Tennessee law or pending Tennessee cases.  The day’s opinions were largely centered on criminal justice and first amendment issues, and their holdings were as follows:

1.   Brumfield v. Cain (5-4):

In Atkins v. Virginia, 536 U. S. 304 (2002), the U.S. Supreme Court held that the Eighth Amendment’s prohibition on cruel and unusual punishment prevents the government from executing an intellectually disabled person.  After Atkins was decided, a death-row inmate from Louisiana requested an opportunity to prove that he was intellectually disabled in Louisiana state court.  Without affording him an evidentiary hearing or granting him time or funding to secure expert evidence, the state court rejected the inmate’s claim.

Held:  The inmate was entitled to have his claim that he was intellectually disabled considered on its merits by a federal court.

2.  Ohio v. Clark (9-0, but with an obstreperous separate concurrence from Justices Scalia and Ginsburg, and another separate concurrence from Justice Thomas):

Teachers discovered injuries on a three-year-old child, and they asked the child: “Who did this?  What happened to you?”  The child identified the defendant, Darius Clark, as the person who had hurt him.

At trial, the child was deemed to be too young to testify, but the state introduced the hearsay statements that he had made to his teacher as evidence against the defendant.  The defendant sought to exclude the child’s statements under the Sixth Amendment’s Confrontation Clause.  The trial court denied the defendant’s motion, ruling that the child’s responses were not covered by the Sixth Amendment because they were not “testimonial.”  The defendant was ultimately convicted on seven separate counts including felonious assault, endangering children, and domestic violence.

Held:  The test under the Confrontation Clause is whether a statement was given with the primary purpose of creating an out-of-court substitute for trial testimony.  Because the three-year-old child’s statement was not made with that purpose, it was not testimonial, and as a result, it could be admitted at trial without violating the Confrontation Clause.  The fact that the teachers had a mandatory reporting requirement does not change the outcome, as the teachers’ primary purpose was to avoid delivering an abused child into imminent harm, rather than to establish facts for a later prosecution.

3.  Davis v. Ayala (5-4):

During jury selection, a defendant objected that seven of the prosecution’s peremptory challenges (which are used to strike potential jurors from the jury pool) were impermissible because they were based on the jurors’ race.  Under the U.S. Supreme Court’s prior decision in Batson v. Kentucky, 476 U. S. 79 (1986), the government is not allowed to strike a juror because of his or her race.

The judge improperly permitted the prosecution to disclose its reasons for several of its peremptory challenges outside the presence of the defense.  Following those ex-parte hearings, the judge concluded that the government’s peremptory challenges were permissible because the government had offered valid, race-neutral reasons for the strikes.  The defendant was eventually convicted.

Held: Assuming—without deciding—that excluding a defendant’s attorney from a Batson hearing constitutes federal constitutional error, the error was harmless in this case, so the defendant’s conviction remains in place.[1]

[Note: for more on harmless error in constitutional cases, see this post on what to expect in the Vanderbilt rape case.]

4.  Walker v. Sons of Confederate Veterans (5-4 with Justice Thomas joining the Court’s liberal wing):

Texas offers automobile owners a choice between general-issue license plates and specialty license plates.  Those who want a particular specialty license plate may propose a plate design that contains a slogan, a graphic, or both.  If the Texas Department of Motor Vehicles Board approves the design, then the State will make it available for display on vehicles registered in Texas.

In this case, the Sons of Confederate Veterans filed suit against the Texas Department of Motor Vehicles Board because it rejected their proposal for a specialty plate design that featured a Confederate battle flag.  The Sons of Confederate Veterans argued that the Board’s decision to reject their design violated the Free Speech Clause of the First Amendment, but the Court rejected their argument on “government speech” grounds.

Held:  When the government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.  Here, Texas’s specialty license plate designs constitute government speech, and thus, Texas was entitled to refuse to issue plates containing a specialty design featuring a Confederate battle flag.

5.  McFadden v. United States (9-0):

A defendant was indicted for distributing “bath salts” in violation of the federal Controlled Substance Analogue Enforcement Act of 1986 (“the Analogue Act”), which identifies a category of substances substantially similar to those listed on the federal controlled substances schedules, and which instructs courts to treat those analogues as schedule I controlled substances if they are intended for human consumption.  The defendant argued that he did not know that the “bath salts” that he was distributing were controlled substance analogues.  Consequently, he sought a jury instruction that would have prevented the jury from finding him guilty unless it found that he actually knew the substances that he had distributed had chemical structures and effects on the central nervous system substantially similar to those of controlled substances.  The trial court did not give the defendant’s requested jury instruction.

Held:  When a controlled substance is an analogue, the government must establish that a defendant knew that he was dealing with a substance that was prohibited by the Controlled Substances Act or the Analogue Act in order to convict him.

6.  Reed v. Town of Gilbert (9-0, but with three separate concurring opinions):

The town of Gilbert, Arizona prohibits the display of outdoor signs without a permit.  However, it exempts 23 categories of signs from this requirement, including “Ideological Signs,” “Political Signs,” and “Temporary Directional Signs,” all of which have different restrictions that apply to them.

A local church and its pastor, Clyde Reed, posted signs early each Saturday bearing the Church’s name as well as the time and location of the next church service.   However, the church did not remove the signs until around midday on Sunday afternoon.  The church was eventually cited for exceeding the law’s time limits for displaying temporary directional signs, and for failing to include an event date on the signs.   Unable to reach an accommodation with the town, the church and the pastor filed suit against the Town of Gilbert claiming that its sign law abridged their freedom of speech.

Held:  The law’s sign provisions are content-based regulations of speech, and thus, they must satisfy strict scrutiny, which requires the government to prove that the law is narrowly tailored to achieve a compelling government interest.  In this case, the provisions did not survive strict scrutiny because the Town of Gilbert did not demonstrate that the law’s differentiation between temporary directional signs and other types of signs both furthered a compelling governmental interest and were narrowly tailored to achieve that end.

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[1] According to the majority opinion, that holding was compelled by Brecht v. Abrahamson, 507 U. S. 619, 637 (1993)—which held that federal habeas petitioners “are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice,’” as well as by the highly deferential standard of review established by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d), which provides that a federal court cannot grant defendants relief unless the state court’s rejection of his claim was contrary to or involved an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts.