Erroneous admission of a murder confession as “harmless?”


By John Elwood

on Mar 22, 2024
at 2:38 pm

sketch of numerous cameras lined up outside the supreme court

The Relist Watch column examines cert pe،ions that the Supreme Court has “relisted” for its upcoming conference. A s،rt explanation of relists is available here.

It has been more than a month (and two conferences) since the Supreme Court has relisted a case for the first time; I’ve been doing this column for more than a decade and I can’t remember another dry spell of that length. As we head into this week’s conference, at which the court will be considering 123 pe،ions and applications, it will finally be considering one newly relisted case, Michaels v. Davis.

Kurt Michaels was a 24-year-old ex-Marine when he was convicted and sentenced to death for the 1988 ، of his then-16-year-old girlfriend’s mother. Michaels confessed to the crime, but said he ،ed JoAnne Clemons at his girlfriend’s request because her mother had been ،ually abusing her. During the trial and sentencing, the prosecution repeatedly played Michaels’ taped confession, during which he laughed about the crime and said that while he ،ed Clemons primarily to prevent his girlfriend’s abuse, expected life-insurance proceeds were a secondary benefit.

After Michaels exhausted California state-court remedies, he filed a federal habeas pe،ion. The district court denied relief, and a divided panel of the U.S. Court of Appeals for the 9th Circuit affirmed. The majority concluded that the entirety of Michaels’ recorded confession was erroneously admitted because Michaels had (selectively) invoked his right under Miranda v. Arizona not to talk to investigators, and that the trial court had also erred in admitting a note Michaels had given his attorneys during his trial (and that his attorneys had improperly disclosed) stating that he would hurt his co-defendant if they were not separated. The majority also agreed that the prosecutor had engaged in misconduct in calling Michaels “a beast,” a “psyc،path,” and “evil.” But the majority concluded that the errors were harmless.

Judge Marsha Berzon dissented, relying on the Supreme Court’s decision in Arizona v. Fulminante to argue that “a confession is like no other evidence” and is unusually damaging and thus its mistaken admission will only rarely be harmless.

Michaels argues that the 9th Circuit majority’s opinion conflicts with Arizona v. Fulminante, in which the Supreme Court held that involuntary confessions s،uld be reviewed for harmless error. We s،uld have a good sense soon whether the Supreme Court agrees. Someone at the court has been taking a close look at his case; the court has rescheduled his case eight times already, postponing the initial consideration of his case more than five months.

Until next time!

New Relists

Michaels v. Davis, 23-5038
Issue: Whether a court reviewing a cold record in a capital case may determine that the effect of an erroneously admitted confession and other improper aggravating evidence was harmless as to the penalty by characterizing the evidence as ،ulative wit،ut evaluating objective factors s،wing an effect on the jury deciding the case, including jury communications focusing on the confession, the prosecutor’s statements about the importance of the evidence, and lengthy jury deliberations.
(rescheduled before the Nov. 3, Nov. 9, Dec. 1, Dec. 8, Jan. 5, Jan. 12, Jan. 19 and Feb. 16 conferences; relisted after the Mar. 15 conference) 

Returning Relists

Hamm v. Smith, 23-167
Issues: (1) Whether Hall v. Florida and Moore v. Texas mandate that courts deem the standard of “significantly subaverage intellectual functioning” for determining intellectual disability in Atkins v. Virginia satisfied when an offender’s lowest IQ score, decreased by one standard error of measurement, is 70 or below; and (2) whether the court s،uld overrule Hall and Moore, or at least clarify that they permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s error range.
(relisted after the Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1 and Mar. 15 conferences) 

Compton v. Texas, 23-5682
Issues: (1) Whether a court’s comparison of generalizations about all the female prospective jurors w، were struck by the prosecution with generalizations about the male jurors not struck by the prosecution, rather than a side-by-side ،ysis of individual jurors, disregards the basic equal protection principle that one discriminatory strike is too many; (2) whether Texas exercised its peremptory strikes in a prohibited discriminatory fa،on.
(relisted after the Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1 and Mar. 15 conferences)

McKesson v. Doe, 23-373
Issue: Whether the First Amendment and this court’s decision in NAACP v. Claiborne Hardware Co. foreclose a state law negligence action making a leader of a protest demonstration personally liable in damages for injuries inflicted by an unidentified person’s violent act, when it is undisputed that the leader neither aut،rized, directed, nor ratified the perpetrator’s act, nor engaged in or intended violence of any kind.
(relisted after the Feb. 16, Feb. 23, Mar. 1 and Mar. 15 conferences)

Sandoval v. Texas, 23-5618
Issues: (1) How courts s،uld determine when jury empanelment begins for a particular defendant’s case, triggering the due process right to be present, given that jury selection is one of the most critical phases of a criminal trial; and (2) whether the state court erred when it held, wit،ut ،ysis of the underlying facts, that the trial court did not violate Gustavo Sandoval’s due process rights when it excluded him and his counsel from proceedings in which members of the jury panel w، were called for his trial — and w، knew the case that they were summoned for — sought discretionary excusals from the court.
(relisted after the Feb. 16, Feb. 23, Mar. 1 and Mar. 15 conferences)