Friday, November 22, 2019

Today, the United States Supreme Court will consider Adnan Syed's petition for writ of certiorari. That petition asks the Supreme Court to take up the following question:

Whether a court evaluating prejudice under Strickland v. Washington, 466 U.S. 668 (1984), must take the State’s case as it was presented to the jury, as ten state and federal courts have held, or whether the court may instead hypothesize that the jury may have disbelieved the State’s case, as the Maryland Court of Appeals held below.

So, what should we expect?

All of the filings in Adnan's case were

distributed to the justices’ chambers. Seven of the current justices participate in the cert pool, which is a labor-saving device in which a cert petition is first reviewed by one law clerk in one of the seven chambers. That clerk prepares a memorandum about the case that includes an initial recommendation as to whether the court should review the case; the memorandum is circulated to all seven chambers, where it is reviewed by the clerks and possibly the justices there. Justices Samuel Alito and Neil Gorsuch do not participate in the cert pool. Instead, their law clerks review the incoming cert petitions on their own and make recommendations directly to their respective justices. Based on these reviews, the justices [might] decide to add [Adnan's case] to the discuss list, a short list of cases they plan to talk about at their next private meeting, or conference. (If no justice had asked to add [Adnan's case] to the discuss list, it would have been put on the “dead list,” and certiorari would automatically have been denied without the justices having ever discussed the case or voted on it.)

If Adnan's case ended up on the "dead list," it will not be discussed today, and we will find out Monday at 9:30am that cert has been denied in his case and that his current appeal is over.

If Adnan's case ended up on the "discuss list" and 4+ Justices agree to grant cert, we will find out Monday at 9:30am that cert has been granted and that the Supreme Court will hear his case. If Adnan's case ended up on the "discuss list" and 6+ Justices concluded they definitely would not grant cert, we will find out Monday at 9:30am that cert has been denied in his case and that his current appeal is over.

Finally, Adnan's case might end up relisted, in which case we won't have resolution on Monday.

When a case is “relisted,” that means that it is set for reconsideration at the Justices’ next Conference. Unlike a hold, this will show up on the case’s electronic docket. A relist can mean several things, including the fairly straightforward prospect that one or more Justices wants to take a closer look at the case; that one or more Justices is trying to pick up enough votes to grant review (four are needed); that the Justices are writing a summary reversal (that is, a decision that the lower court opinion was so wrong that the Court can decide the case on the merits without briefing or oral argument); or that one or more Justices are writing a dissent from the decision to deny review.

A case being relisted increases the chances that cert will be granted, but it's no guarantee. For example, Brendan Dassey's case was relisted before the Supreme Court ultimately denied cert. Overall, the Supreme Court receives 7,000-8,000 cert petitions each term and grants cert in only about 80 cases.

-CM

https://lawprofessors.typepad.com/evidenceprof/2019/11/today-the-united-states-supreme-court-will-consider-adnan-syeds-petition-for-writ-of-certiorari-that-petition-asks-the-supr.html