Do Ex-Prosecutors Help Build The High Court’s Large Criminal Docket?


Does the presence of former prosecutors Samuel Alito and Sonia Sotomayor on the Supreme Court encourage the tribunal to hear more criminal cases? So Ohio State University law Prof. Douglas Berman speculates. Berman says the most notable feature of the court’s annual term that began last week “is its large and consequential criminal law docket.” Alito and Sotomayor “likely find a range of criminal law topics inherently more interesting than (do) their colleagues, and they also likely understand more fully how important clarity and certainty is to the work of all criminal justice practitioners.”

Another factor, Berman says, could be the likely retirement of Justice John Paul Stevens after this term. “He may be eager to have one last bite at a bunch of criminal law apples.” The Supreme Court agreed yesterday to hear the appeal of former Enron official Jeffrey Skilling, which raises questions about the scope of the federal law punishing the failure to provide “honest services” as a corporate executive. The appeal also raises the claim that “searing media attacks” on Skilling tainted his criminal trial and conviction on fraud charges. Other newly granted cases raise issues on the scope of federal appeals courts' authority to overturn a conviction that may have been based partly on conduct that was not criminal when it occurred, and whether “gross negligence” by a state-appointed defense attorney in a death penalty case provides a basis for extending the time to file a federal habeas-corpus challenge.

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