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CRIMINAL JUSTICE | FALL 2021
cert alert
Published in Criminal Justice, Volume 36, Number 3, Fall 2021. © 2021 by the American Bar Association.
Reproduced with permission. All rights reserved.This information or any portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database orretrieval
system without the express written consent of the American Bar Association.
ANTHONY FRANZE is a lawyer in the Appel-
late & Supreme Court practice at Arnold & Porter, a
regular commentator on the high court and appellate
law, and a critically acclaimed novelist.
The Supreme
Court’s Oc-
tober 2021
term promises to
be a blockbuster.
With less than
half of the court’s
docket filled at the
time this column
went to print, the
justices already have accepted high-profile cases
concerning abortion rights, the Second Amend-
ment, and religious school choice.
Though these marquee cases will likely domi-
nate the headlines, the high court will also consid-
er several important criminal law–related issues
this term. In October alone, the justices will hear
arguments in a case involving the government’s
effort to reinstate the death penalty of one of the
Boston Marathon bombers, a case addressing the
permissible scope of the Armed Career Crimi-
nal Act, and a case that will provide guidance to
practitioners navigating SCOTUS’s Confrontation
Clause jurisprudence.
With ongoing concerns about COVID-19, it
is unclear whether the justices will continue to
hear oral argument by telephone or return to
in-courtroom arguments. But whether in-person
or by phone, the docket is chock-full of significant
criminal law–related cases, with more surely to
follow. The following are the criminal cases set for
argument at the time we went to print.
SCOTUS CRIMINAL LAW–RELATED CASES
TO DATE
Crimes and Offenses—Armed Career
Criminal Act
Wooden v. United States, No. 20-5279
Argument Date: October 4, 2021
Question Presented:
Did the Sixth Circuit err by expanding the
scope of 18 U.S.C. § 924(e)(1) in the absence
of clear statutory definition with regard to
the vague term “committed on occasions
different from one another”?
[Disclosure: Arnold & Porter is counsel for
petitioner.]
Habeas—Standard for Constitutional Error
Brown v. Davenport, No. 20-826
Argument Date: October 5, 2021
Question Presented:
May a federal habeas court grant relief
based solely on its conclusion that the
Brecht test is satisfied, as the Sixth Cir-
cuit held, or must the court also find that
the state court’s Chapman application was
unreasonable under § 2254(d)(1), as the
Second, Third, Seventh, Ninth, and Tenth
Circuits have held?
Sixth Amendment—Confrontation Clause
Hemphill v. New York, No. 20-637
Argument Date: October 12, 2021
Question Presented:
A litigant’s argumentation or introduction of
evidence at trial is often deemed to “open
the door” to the admission of responsive
evidence that would otherwise be barred
by the rules of evidence. The question
presented is: Whether, or under what cir-
cumstances, a criminal defendant who
opens the door to responsive evidence also
forfeits his right to exclude evidence other-
wise barred by the Confrontation Clause.
Death Penalty—Sentencing/Pretrial Publicity
United States v. Tsarnaev, No. 20-443
Argument Date: October 13, 2021
Questions Presented:
1. Whether the court of appeals erred in
concluding that respondent’s capital
sentences must be vacated on the ground
that the district court, during its 21-day voir
dire, did not ask each prospective juror for
a specific accounting of the pretrial media
coverage that he or she had read, heard,
or seen about respondent’s case.
2. Whether the district court committed
reversible error at the penalty phase of
respondent’s trial by excluding evidence
that respondent’s older brother was
allegedly involved in different crimes two
by ANTHONY FRANZE
Supreme
Court Cases
of Interest
