United States Supreme Court considering a First Amendment challenge to Michelle Carter’s conviction.  Michelle Carter, the 17-year-old who was convicted of involuntary manslaughter for the death of her boyfriend, Conrad Roy III, when she had sent text messages encouraging him to commit suicide, has petitioned the U.S. Supreme Court for certiorari arguing that her conviction violates both the First and Fifth Amendment.

Carter argues that her case, which garnered extensive public attention and media coverage around the globe, is an appropriate vehicle to address these First and Fifth Amendment constitutional questions.

Carter wastes no time in the petition pointing out to the Court how unprecedented her conviction is stating that, “Massachusetts is the only state to have affirmed the conviction of a physically absent defendant who encouraged another person to commit suicide with words alone.”

Last August, the Pennsylvania Supreme Court upheld the conviction of Jamal Knox, a rap artist, for multiple charges stemming from what the trial court found were terroristic threats based on the contents of his rap song “F**ck the Police.”  Knox petitions for Supreme Court review and if granted, the Court could not only clarify the “true threats” standard – a muddledarea of First Amendment jurisprudence – but weigh in on the culturally-sensitive and complicated relationship between rap music and free speech.

It is well-established law that true threats of violence fall outside of First Amendment protection.  What constitutes a “true threat,” however, remains far from settled.  In Watts v. United States, 304 U.S. 705 (1969), the Supreme Court held the First Amendment does not protect statements a reasonable person would regard as threatening.  In Virginia v. Black, 538 U.S. 343 (2003), the Supreme Court added a discussion of speaker intent to “true threat” jurisprudence, but fell short of establishing a subjective intent requirement.

Since Black, courts have employed divergent standards when evaluating whether a statement rises to the level of a true threat.  Some follow more of an objective standard, asking whether a reasonable person would find the statement threatening.  Others, however, follow more of a subjective standard, focusing on whether the speaker intended to communicate a threat by their statement. In fact, the law is so muddled that in some states, like Massachusetts, the federal and state courts within the same state do not apply the same standard.

​How long must one be deprived of his freedom before the deprivation is considered “absolute?”  For what time period must a person be away from her job, her family, or her home before the loss of liberty is no longer considered a “mere diminishment of a benefit?”  And what is the appropriate amount of time an indigent arrestee must wait to receive the same benefit as someone more affluent?  On April 1, 2019, the Supreme Court of the United States denied a petition for a writ of certiorari filed in the case of Maurice Walker v. City of Calhoun, Georgia, a case which would have allowed it to consider these very questions.  

​In late 2015, Maurice Walker was arrested and charged with being a pedestrian under the influence of alcohol.  At the time of the arrest, Mr. Walker had a mental illness which prevented him from working, and he received $530 per month in disability.  Although the offense with which he was charged carried no jail time, the city of Calhoun, Georgia had a policy of requiring a cash bail for misdemeanor and traffic offenses.  Not uncoincidentally, the cash bail amount equaled the amount of the fine an arrestee would pay if found guilty of the offense plus certain fees.  The bail in Mr. Walker’s case totaled $160.  Mr. Walker had the bad luck of being arrested during a week leading up to a holiday Monday in a small town with only one Municipal Court judge. Because Mr. Walker could not afford the bail, he was set to remain in jail for thirteen days awaiting a hearing which only occurred on non-holiday Mondays.  Instead, Mr. Walker filed suit and was released after six days in jail on an appearance bond, and the City quickly modified their policy to allow for release of indigents after a maximum of forty-eight hours of incarceration.

​The district court granted a preliminary injunction in favor of Mr. Walker, which the 11thCircuit vacated finding that the lower court had erred in applying heightened scrutiny to Mr. Walker’s argument.  This formed the basis for the petition for certiorari.  In his petition, Mr. Walker argued that under the Equal Protection and Due Process clauses of the Fourteenth Amendment to the U.S. Constitution, one could not be subjected to imprisonment solely because one was indigent.  One of the judges on the divided 11th Circuit panel had agreed with Mr. Walker; Judge Martin argued that heightened scrutiny should apply because Mr. Walker, and those like him, suffered an absolute deprivation of liberty.

In the case of Mitchell v. Wisconsin, the United States Supreme Court has agreed to hear a case from Wisconsin addressing the issue of whether States can have a statute allowing warrantless blood draw of an unconscious suspect.   Wisconsin and 29 other States allow warrantless blood draws of an unconscious individual as part of its implied consent laws. In the Mitchell case, the Wisconsin Supreme Court in a divided opinion rejecting the Fourth Amendment challenge with three judges finding that consent was implied and two finding that consent was not required under the circumstances.

Implied consent means that when someone gets their driver’s license, they agree before hand to take a breath or blood test.  In other words, the consent is given when the person obtains their driver’s license.  If a person does not take a breath or blood test, the State can impose sanctions for refusal.  You can read the filings of the Mitchell case on the Scotus Blog.

If the defendant prevails on his Constitutional argument, laws in 29 states will be deemed unconstitutional allowing blood draws for someone that is unconscious.  Seven States Courts have found that unconscious blood draw statutes under the name of implied consent are unconstitutional under the Fourth Amendment.  The United States Supreme Court will resolve this split in how the Fourth Amendment is interpreted.

The United States Supreme Court has granted Certiorari in the case of Gamble v. United States that raises the issue of whether the Double Jeopardy Clause precludes prosecution for the same offense by the federal and State Government.  

The case of Terrance Gamble involves a 2008 conviction from Alabama where he was convicted of second degree armed robbery.  Both federal and state law barred him from possessing a firearm.  Gamble was found in possession of a handgun.  He was prosecuted by both the federal and state governments for being a felony in possession of a firearm.  The defendant moved to dismiss the federal indictment on Double Jeopardy Grounds, as the federal charge was taken out after the State case was already pending.  Relying on the separate sovereign doctrine, the court denied the motion to dismiss.  The defendant entered a conditional plea preserving this issue for review.  

The defendant argued that the plain meaning of the Double Jeopardy Clause is that no person should be punished for the same crime twice.  The defense argued that cases prior to the formation of the Constitution from England rejected the separate sovereign doctrine.  The defense argued that the separate sovereign doctrine came about from a prohibition case, United States v. Lanza, 260 U.S. 377 (1922) that was driven by policy considerations with the court not looking into the original intent behind the Double Jeopardy Clause.  The defense argued that the doctrine was wrong from the start and the Court was deeply divided when the doctrine was formed.  

Does Double Jeopardy bar prosecution for the Same crime in Federal and State Court?  A series of petition for certiorari before the United States Supreme Court ask the Court to address whether the Double Jeopardy Clause bars either the State or Federal Government from prosecuting a person for the same crime when the other entity has already convicted the individual.

The Double Jeopardy Clause of the Fifth Amendment states that no person shall be subject for the same offense to be twice put in jeopardy life or limb.  The Clause does not distinguish between State versus federal government.  The United States Supreme Court has interpreted this clause as not barring prosecution in State and federal court on the theory that each is a separate sovereign entity.  The three petition for Certiorari all ask the Court to revisit this doctrine.

In support of the petition in Gamble v. United States, the defense argues that at the time of the court decision in it was very rare to have both federal and state prosecutions, but with the expansion of federal law, dual prosecutions have become more common. The dual sovereign doctrine was formed in cases from the 1800s and was reaffirmed in a case called Bartkus v. Illinois, 359 u.S. 121 (1959).  The defense points to the concurring opinion of Justice Ginsburg and Justice Thomas in Puerto Rico v. Sanchez Ville, 136 S.Ct. 1863 (2016) suggesting that the doctrine should be revisited as reason for the Court to grant certiorari.

In McCoy v. Lousiana, the United States Supreme Court will address the issue of who has the authority to control the decision to admit guilt, the lawyer or the client.  Can the Lawyer for strategy reasons, concede guilt to avoid the death penalty?  This was the issue facing a criminal defense lawyer who despite his client’s wishes conceded guilty to spare his client the death penalty.  The strategy failed.  His client appealed to the United States Supreme Court arguing that a lawyer cannot concede guilty over his clear objection.

The defendant wanted to maintain his innocence, but the lawyer disagreed and required the defendant plead guilty in order to avoid the death penalty.  The issue raised by this case is that even if it is a good strategy to concede guilt, can the lawyer make that decision over the client’s objection.

In a criminal case, there are certain decisions that the client has absolute control over: