December 1999

by Craig Hemmens and Rolando V. del Carmen

During its 1998-1999 term, the United State Supreme Court handed down signed opinions in 75 cases. This figure was down from 91 signed opinions in the previous term, is half the number of opinions issued during terms in the mid-1980s, and represents the fewest number of cases decided by signed opinion since the early 1950s. Over 8,000 cases reached the Court, the vast majority of which were denied review. Although the number of cases decided dropped dramatically, several decisions were of great significance. The Court issued rulings limiting the ability of Congress to regulate the states, interpreted the reach of the Americans with Disabilities Act, held that schools can be held liable for damages for student-on-student sexual harassment under Title IX, and issued several major Fourth Amendment rulings.

The Court reversed or vacated lower court decisions in approximately half of its decisions. The Ninth Circuit, a favorite target of the U.S. Supreme Court, was reviewed 11 times, with the high court affirming four decisions and reversing seven. The Eleventh Circuit fared even worse, being reversed in five out of six cases. The Supreme Court reversed state supreme courts seven times, while affirming only twice. The Executive Branch and Congress did not fare much better, as the Court showed little deference to its co-equal branches, striking down several acts of Congress and the President.

There were 29 unanimous decisions (34 percent), and 51 decisions (68 percent) were decided by at least a 7-2 majority. While this presents a picture of general ideological agreement, it should be noted that there were 16 cases with 5-4 decisions (21 percent), and the dissents were often quite acrimonious. Clear ideological blocs have formed, with the Chief Justice and Justices Scalia and Thomas frequently aligned against Justices Stevens, Breyer, Ginsburg and Souter. Justices Kennedy and O'Connor are frequently in the center, providing the crucial votes in many cases; they both voted in the majority in all but one of the 16 5-4 decisions. Chief Justice Rehnquist and Justice Stevens disagreed the most, in 34 cases. In contrast, Chief Justice Rehnquist and Justice Thomas disagreed in only five cases.

Majority opinion authorship was fairly evenly divided. Justice O'Connor wrote the most majority opinions (10), while Justices Thomas and Stevens wrote the least (seven each). The most prolific opinion writer was Justice Stevens, with 29 majority, dissenting and concurring opinions. The least prolific writer was Justice Souter, with just 14 opinions. Following a trend of recent years, Justice Stevens filed the most dissents (19). Chief Justice Rehnquist was not far behind, authoring 15 dissents. Justices O'Connor and Kennedy filed the fewest dissenting opinions (eight each).

More than a third (27) of the written opinions handed down by the high court dealt with criminal procedure issues. As usual, several cases involved the interpretation of federal statutes, including the recently enacted carjacking statute and the Federal Death Penalty Act. The Court issued several major decisions interpreting the reach of the Fourth Amendment. These included the expectation of privacy in a home, an anti-gang loitering ordinance, and several issues arising from traffic stops. Following is a summary of the significant criminal justice-related decisions of the 1998-1999 term, arranged alphabetically by subject. The case history, rationale of the Court, and the vote totals are included.

67 USLW 4444 (October 13, 1998)

In an unusual dissent to a denial of a petition for a writ of certiorari, Justice Breyer suggested that spending a significant period of time on death row might constitute a violation of the Eighth Amendment's prohibition against cruel and unusual punishment. He stated that when a person spent so long under sentence of death not as a result of his own "frivolous appeals" but "because of the state's own faulty procedures," it might constitute a constitutional violation. The dissent came in the case of a Florida inmate who has been on death row for 23 years and has had four unsuccessful appeals. Justice Stevens had made a similar point in prior cases, but did not join Justice Breyer's sole dissent. The majority denied the petition without explanation in an 8-1 decision.

67 USLW 4508 (1999)

Jones was charged under the Federal Death Penalty Act, 18 U.S.C. 3591 (1994) with kidnapping and murdering a member of the military, a crime punishable by either death or life in prison. At trial, the judge erroneously instructed the jury that failure to unanimously agree on the death penalty would result in either a sentence of life in prison or "some other sentence," and that if the jury recommended a lesser sentence, the court would "impose a sentence that is authorized by the law." The jury recommended, and Jones received, a death sentence. On appeal he claimed a violation of both the Eighth Amendment and the due process clause of the Fifth Amendment. He argued that the jury instruction may have confused the jury, causing them to think that unless they gave him the death penalty he might end up with a less severe sentence than life in prison, when in fact he could not receive such a sentence. The Fifth Circuit upheld the conviction and sentence.

The Supreme Court narrowly upheld the death sentence. Writing for the majority, Justice Thomas held that the Eighth Amendment does not require that jurors be informed of the consequences of their failure to agree on a sentence of either death or life imprisonment. Furthermore, the jury instruction in this case did not violate the due process clause because, while it was in error, the error was harmless, as the judge informed the jury he would impose a sentence "authorized by law," which implicitly meant a sentence of no less than life in prison. The dissent by Justice Ginsburg argued that the jury instruction led jurors to reasonably believe a sentence of less than life in prison might result if they failed to return a death sentence recommendation, thus rendering the jury verdict unreliable. 5-4 decision.

67 USLW 3557 (1999)

LaGrand was sentenced to death in Arizona in 1984. At the time, gas was the only means of execution in Arizona, and he did not challenge the method of execution on appeal in the state courts. The state subsequently added lethal injection as a means of execution, and allowed those sentenced to death to choose either gas or lethal injection. LaGrand chose the gas chamber, and then challenged the method of execution as violative of the Eighth Amendment's prohibition on cruel and unusual punishment. The Ninth Circuit denied his request for a stay of execution, but enjoined the state from using gas to execute LaGrand.

In a per curiam opinion issued without briefing or oral argument, a majority of the Supreme Court summarily reversed the Ninth Circuit. According to the majority, LaGrand's choice of gas as a method of execution served as a waiver of his claim that gas was an unconstitutional method of execution. Additionally, even if LaGrand had not waived his right to challenge lethal gas as a method of execution by choosing gas, he had procedurally defaulted by not objecting to gas as a method of execution on his original appeal. 8-1 decision.

67 USLW 4415 (1999)

In an effort to combat the problem of street gangs, Chicago passed an ordinance permitting police officers to ask persons they reasonably believed to be members of a criminal street gang and who were loitering in a public place to disperse, and made it a crime to disobey this request. Several persons convicted of refusing to disperse appealed, alleging the ordinance violated their right to due process because it was too vague and provided police officers with too much discretion. The Illinois Supreme Court declared the ordinance void for vagueness because it failed to give ordinary people adequate notice of what constituted illegal conduct, and because it failed to provide sufficient guidance for police officers in the exercise of their discretion.

A bitterly divided U. S. Supreme Court affirmed the state supreme court. Writing for the majority, Justice Stevens asserted that the ordinance infringed on an individual's right to loiter for innocent purposes, as it did not require the state to establish a criminal intent; police could order anyone who was loitering to disperse. The ordinance also failed to provide adequate notice of what conduct was prohibited, and gave officers too much enforcement discretion.

Justice Scalia dissented, complaining that the majority had "elevat[ed] loitering to a constitutionally guaranteed right" and that the statute was not impermissibly vague. Justice Thomas also dissented, complaining the majority focused on the rights of criminals at the expense of innocent citizens living in these crime-ridden neighborhoods, "people who have seen their neighborhoods literally destroyed by gangs and violence and drugs . . . good, decent people who must struggle to overcome their desperate situation, against all odds, in order to raise their families." 6-3 decision.

67 USLW 4404 (1999)

Neder was convicted on a variety of federal fraud charges arising out of a land development deal and his efforts to underreport his income. A key issue at trial was whether his misrepresentations were "material." At the time of his trial, the practice was to allow judges to make that determination as a matter of law. Subsequent to his trial, however, in United States v. Gaudin, 515 U.S. 506 (1995), the Supreme Court held that materiality was an element of the offense and should therefore be determined by the jury. Neder appealed his conviction, claiming that removing an element of an offense from the jury deprived him of his right to due process. The Eleventh Circuit affirmed, holding that since Neder did not contest the materiality of his statements at trial, the proper standard of review was harmless error, and that under that standard there was sufficient evidence to affirm the conviction.

The Supreme Court, in an opinion by Chief Justice Rehnquist, held that a jury instruction which omits an element of an offense does not per se render the trial fundamentally unfair. In prior cases, the Court had recognized a distinction between "structural errors" (which require automatic reversal) and "trial errors" (which merely require harmless error review). The improper jury instruction in this case was categorized by the majority as a mere trial error. Therefore, harmless error analysis was proper. Justice Scalia dissented, arguing that depriving a defendant of the right to have the jury determine every element of the crime charged should never be treated as harmless error. 6-3 decision.

67 USLW 4477 (1999)

Strickler received the death penalty for kidnapping and killing a woman. While there were a number of eyewitnesses to the kidnapping, which occurred outside a Virginia shopping mall, the most gripping testimony came from one woman who said at trial she had "absolutely no doubt" as to her identification of the defendant as the primary perpetrator. This witness did not speak to police until several months after the crime, and initially said she wasn't sure she could identify the perpetrator. During pretrial discovery the prosecution, which maintained what it called an "open door" policy, allowed the defense to see all the materials in the case file, pursuant to the rule in Brady v. Maryland, 373 U.S. 83 (1963), which requires prosecutors to turn over exculpatory as well as inculpatory evidence to the defense. However, the witness's initial statement to the police was not in the file at this time. After his direct appeals failed, Strickler filed a habeas appeal, and discovered the witness's statement in the police files. The district court concluded that the failure to disclose the statement constituted a Brady violation, but the Fourth Circuit disagreed, holding that the nondisclosure of the witness's initial statement was not prejudicial and that Strickler's claim was barred by his procedural default.

Justice Stevens authored the majority opinion upholding the dismissal of Strickler's habeas petition. He first noted that Strickler had procedurally defaulted on his Brady claim by failing to raise it at trial or in his state appeal. Consequently, Strickler had to show both cause for the default and that he had been prejudiced by the withholding of the evidence. Stevens acknowledged that the evidence was wrongly withheld and that it might have altered Strickler's fate. That the result might have been different was not enough to demonstrate prejudice. Instead, Strickler had to show that there was a "reasonable probability" that the outcome would have been different. This is known as the "materiality" requirement. The majority noted that there was overwhelming evidence from other witnesses implicating Strickler, and that this overcame the prejudice caused by the exclusion of the statement of one witness. The dissent by Justice Souter noted that just one juror's reservations would have saved Strickler from the death penalty, and that while there was a great deal of inculpatory evidence, it was possible that discrediting the certainty of the primary prosecution witness would have swayed one juror. Souter suggested reformulating the Brady test to require only a showing of a "significant probability" that the excluded evidence would have produced a different result. 7-2 decision.

67 USLW 4179 (1999)

In a personal injury lawsuit for damages suffered in an automobile accident, the plaintiff sought to introduce into evidence the testimony of an expert in tire failure analysis. The trial court excluded the expert witness's testimony on the grounds that it did not pass the reliability requirement of Federal Rule of Evidence 702. This rule permits expert witness testimony on an issue involving "scientific, technical, or other specialized knowledge." The trial court based its decision on an interpretation of a recent Supreme Court decision on the admissibility of expert witness testimony (Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)). In that case the Court established a four-factor test that trial judges could use to determine the reliability of scientific expert witness testimony. The Eleventh Circuit reversed, holding that the Daubert test applied only to scientific expert testimony, not to technical expert testimony, and that the trial judge had therefore used the wrong test for determining the admissibility of the expert witness testimony.

The Supreme Court unanimously reversed the Eleventh Circuit, and held that the Daubert test is applicable to all forms of expert witness testimony. No distinction is made between scientific or technical or other specialized testimony, as the Federal Rules of Evidence make no distinction and doing so would be impractical. A trial judge is not required to use the four-factor test enunciated by the Court in Daubert, but must in some way ensure that all expert testimony is both relevant and reliable. The Court then applied the Daubert factors to the expert witness testimony in this case, and concluded that the proffered testimony was neither relevant nor reliable, and thus properly excluded by the trial court. 9-0 decision.

67 USLW 4435 (1999)

Lilly was one of three men charged with murder and carjacking. Prior to trial, one of his co-conspirators, his brother, made a statement to the police which implicated both of them, but identified Lilly as the instigator of the crime spree. When Lilly's brother asserted his Fifth Amendment right not to testify at Lilly's trial, the prosecution read into the record the entire statement to the police. The trial court admitted the out-of-court statement under the "declaration against penal interest" exception to the hearsay rule. Under this exception, the statement is assumed to be reliable because the speaker is admitting to wrongdoing, something the speaker is unlikely to do falsely. Lilly was convicted. On appeal, Lilly argued that his brother's statement was hearsay and therefore unreliable, and should have been excluded since Lilly was unable to test the credibility of the non-testifying witness at trial. The Virginia Supreme Court affirmed his conviction.

The U.S. Supreme Court reversed the state court. No opinion garnered a majority of the court. Justice Stevens' plurality opinion held that a confession by an accomplice that incriminates a defendant is not a "firmly rooted" exception to the hearsay rule. While prior cases permit the introduction of a confession which incriminates the speaker as a "declaration against penal interest," the exception should not apply to situations where the statement inculpates the speaker but also serves to incriminate the defendant. This is because the speaker has a strong motivation to alter the truth to help himself at the expense of his accomplice. Thus, while such a statement is partially against the speaker's interest, it is also against the defendant's interest, and since the witness is not available for cross-examination, the statement is not reliable enough to be considered as an exception to the hearsay rule. Several concurring opinions were filed in which the justices argued that the plurality went farther than necessary in establishing that accomplice confessions, which also implicate others, are not an exception to the hearsay rule. Chief Justice Rehnquist argued there was no need to reach that issue in this case, as the confession here was not a true statement against penal interest. 9-0 decision.

67 USLW 4148 (1999)

The defendant was convicted of three counts of carjacking under the federal carjacking statute. In each incident, the defendant threatened to shoot if the driver did not hand over the car keys, but testimony by his accomplice indicated that Holloway did not have the intent to kill or seriously injure the victim unless the victim refused to cooperate. The trial court instructed the jury that such "conditional intent" sufficed to meet the statutory requirement that the defendant had an intent to cause death or serious bodily harm. On appeal, Holloway argued that the carjacking statute required proof of unconditional intent, rather than conditional intent. The Second Circuit upheld the conviction, noting that the concept of conditional intent was well established and that Congress would have been aware of it when enacting the statute.

The majority opinion by Justice Stevens upheld the conviction, stating that a conviction was appropriate under the carjacking statute if conditional intent was established, as it was in this case. While the majority admitted that a possible reading of the statute was to require unconditional intent, a better reading of the statute is that conditional intent is enough. Such an interpretation gives effect to Congress' purpose, which was to deter this particular criminal activity. In dissent, Justice Scalia, joined by Justice Thomas, argued that the ordinary meaning of intent does not include conditional intent, and that when a statute is written ambiguously, the rule of lenity in interpreting criminal statutes requires a resolution of the ambiguity in the defendant's favor. 7-2 decision.

67 USLW 4204 (1999)

Jones was convicted of carjacking in violation of the federal carjacking statute, 18 U.S.C. 2119. Under this statute, carjacking is subject to a sentence of up to 15 years in prison, unless accompanied by serious bodily injury, in which case the maximum sentence is 25 years. Jones' indictment made no reference to the victim suffering serious bodily injury, nor was any evidence to that effect presented at trial. Nonetheless, the district court noted that the presentence report revealed that the victim had suffered serious bodily injury during the carjacking, and used this as the basis for imposing a 25-year sentence. Jones appealed his sentence, claiming that the failure to either allege serious bodily injury in the indictment or prove such injury at trial, as an element of the offense, prevented the court from imposing the longer sentence. The Ninth Circuit affirmed the sentence, on the ground that the part of the statute referencing serious bodily injury did not refer to an element of the offense, but to a sentencing factor. In so holding, the Ninth Circuit was in agreement with all the other courts of appeal that had considered this issue.

The Supreme Court reversed by a narrow vote. The majority opinion, by Justice Souter, held that serious bodily injury was an offense element, not merely a sentencing factor. As such, it must be alleged in the indictment and proved to the jury beyond a reasonable doubt. Due process required such a reading, the majority felt, as the increase in the sentencing range from 15 to 25 years was significant, and that leaving the proof of injury to the judge was an impermissible limitation on the jury's role. The dissent, written by Justice Kennedy, argued that a prior case (Almendarez-Torres v. United States, 523 U.S. 224 (1998)) had already held that a mere increase in sentence range did not transform a sentencing factor into an offense element. 5-4 decision.

67 USLW 4381 (1999)

Richardson, a leader of the Chicago street gang, the Vice Lords, was charged with a series of drug-related offenses, including violation of 21 U.S.C. 848(a), which makes it a crime to engage in a "continuing criminal enterprise" (CCE). The law was specifically aimed at so-called "drug kingpins." During trial the prosecutor presented evidence that Richardson had been involved in a number of drug transactions. The trial judge instructed the jury that in order to find him guilty of engaging in a CCE they must agree unanimously that the defendant committed at least three drug offenses. The judge refused a defense request to instruct the jury that they must all agree that the defendant committed the same three offenses. Richardson was convicted and sentenced to life in prison. On appeal Richardson argued that he could be found guilty of a CCE only if the jury unanimously agreed that he had committed at least three drug crimes, and they all agreed on the same acts. The Seventh Circuit upheld the conviction, creating a conflict in the circuits.

The U.S. Supreme Court, in a majority opinion written by Justice Breyer, reversed, holding that a jury must unanimously agree not only that a CCE defendant committed at least three discrete drug violations, but must also agree on the specific violations. According to the majority, the statute makes each drug violation a separate element of the crime of CCE. Consequently, each element must be proven to the jury beyond a reasonable doubt. The decision will make it more difficult for prosecutors to establish their cases in CCE prosecutions, as the dissent by Justice Kennedy noted. 6-3 decision.

67 USLW 4219 (1999)

The defendant kidnapped a man in Texas and drove him through several states, including Maryland. While in Maryland, he threatened the man with a gun. The defendant was eventually apprehended and brought to trial in New Jersey. He was charged and convicted on several counts, including kidnapping and a violation of 18 U.S.C. 924(c)(1), which makes it a crime to use a firearm while committing another federal crime. On appeal he argued that the firearms conviction was improper because the New Jersey court was not the appropriate venue, as he committed the firearm offense only in Maryland. The Third Circuit reversed, holding that the proper venue for the firearms charge was in the district where the firearm was used.

The U.S. Supreme Court disagreed with the Third Circuit, and held that proper venue for the firearms charge was any federal district where the underlying crime was committed, even if the firearm was not used in that specific district. The majority opinion by Justice Thomas emphasized that the firearms offense was a part of the kidnapping, the underlying offense. Kidnapping is a continuing offense, meaning it can be prosecuted in any jurisdiction in which it occurs. In this case, the victim was kidnapped in Texas and driven across the country, including through Maryland and New Jersey. Venue for prosecution of this offense lay in any district in which the victim was transported. The firearms offense, which is intended by Congress to be added to the underlying offense and allow extra punishment for a violent crime with a gun, may also be tried with the kidnapping offense, regardless of precisely where the firearm was actually "used." Justice Scalia and Justice Stevens dissented, arguing that the plain meaning of the statute made venue proper only in the jurisdiction where the firearm was in fact used, and that the majority was ignoring the plain language of the statute in an effort to allow prosecutors the expediency of trying all the offenses in one jurisdiction. 7-2 decision.

United States v. Sun-Diamond Growers of California

67 USLW 4265 (1999)

The defendant, an agricultural trade association, was convicted of violating 18 U.S.C. 201, the federal illegal gratuity statute. The association gave gifts totaling approximately $6,000 to the then-Secretary of Agriculture at a time when the Secretary was considering several matters in which the association had an interest. No evidence was offered that there existed a specific connection between the gifts and any actions of the Secretary. All that was established was that the gift was made because the Secretary was a public official. The jury was instructed that if the gifts were given because the recipient held public office it was a violation of the statute. The Court of Appeals of the District of Columbia reversed the conviction, ruling that the statute did not apply to the giving of gifts without proof of the intent to affect official conduct, and that the erroneous jury instructions did not constitute harmless error.

The Supreme Court unanimously affirmed the lower court. Justice Scalia's opinion for the Court stated that the statute applied only to the giving of gifts in return for, or because of, a particular, specified act. This was because the statute included the phrase "for or because of," suggesting that there must be proof of some act that led to the gift or is anticipated by the gift. Criminalizing the mere giving of gifts to public officials would have the unintended consequences of making trivial gifts illegal, such as mementos given to the President by visiting athletic teams. 9-0 decision.

67 USLW 3390 (1998)

Coleman was convicted of murder and sentenced to death in 1979. At trial the jury received an instruction that if Coleman received a life sentence without the possibility of parole, the Governor still retained the authority to commute the sentence (this is known as a Briggs instruction, and has been upheld as meeting federal constitutional requirements in California v. Ramos, 463 U.S. 992 (1983)). The jury was also told not to consider the Governor's power when determining the appropriate sentence. The California Supreme Court determined that the jury instruction informing the jury of the Governor's authority violated state constitutional law, but that the error was cured by the additional instruction not to consider the Governor's power. Coleman subsequently filed a habeas petition, arguing the incorrect jury instruction violated his right to due process. The district court and Ninth Circuit agreed, apparently reaching their conclusion without engaging in harmless error analysis, although such analysis is required under Brecht v. Abrahamson, 507 U.S. 619 (1993).

In a per curiam opinion, issued without briefing or oral argument, the Supreme Court reversed the lower courts on the ground that they had granted habeas relief without utilizing harmless error analysis. Under Brecht, relief due to a trial error may be granted only after a determination that the error had a "substantial and injurious effect or influence." Justice Stevens, joined by three others, dissented, arguing that the majority had misread the Ninth Circuit opinion, and that the lower court had used harmless error analysis in reaching its determination that Coleman had suffered a violation of his constitutional rights, but had simply failed to make its mode of analysis clear. 5-4 decision.

67 USLW 4389 (1999)

Boerckel was convicted of rape in Illinois in 1977. His conviction was upheld by the Illinois Court of Appeals. The Illinois Supreme Court, exercising its discretionary jurisdiction, refused to hear his case. He renewed his appeals in the 1990s in federal court, basing his appeal on three claims that were not included in his original appeal to the state Supreme Court. The federal district court judge rejected Boerckel's petition on the ground that the claims were not in his original petition to the Illinois Supreme Court, and that comity required federal courts to permit state courts to first consider all claims. This ruling had the effect of ending Boerckel's appeal, as the time period for filing his claims in state court had long passed; hence Boerckel had procedurally defaulted. The Seventh Circuit Court of Appeals reversed, on the ground that since the petitioner was not required by state law to seek discretionary review in the state Supreme Court, it was improper for the federal court to so require.

Justice O'Connor's majority opinion reversed the Seventh Circuit, and held that state prisoners must give state courts "one full opportunity" to resolve any federal constitutional issues. This means prisoners must follow the state's established appellate review process in its entirety. This is so even if the chance of being heard is negligible (as it is in Illinois, where the state Supreme Court accepts less than five percent of all appeals). The Court acknowledged that while Boerckel had no right to review, he did have a right to petition the court for review. Consequently, he was required to raise all his claims in the state Supreme Court to satisfy the "exhaustion doctrine." Failure to do so barred him from federal court, and as the time had passed in state court, he was procedurally defaulted. The majority placed great emphasis on the importance of comity and respect for the integrity of the state judicial process, an issue of long-standing concern to Justice O'Connor. The dissent by Justice Stevens pointed out that while the majority based its decision on a reluctance to interfere in state proceedings, the actual effect of the decision is that it may increase the workload of state courts, as more petitions will be filed there. 6-3 decision.

Peguero v. United States

67 USLW 4154 (1999)

Peguero pled guilty in federal court to conspiracy to distribute cocaine and received a 22-year sentence. At his sentencing hearing, he was not advised by the court that he had a right to appeal his sentence, although Federal Rule of Criminal Procedure 32(a)(2) so required. Peguero was, despite this oversight, clearly aware of his right to appeal his sentence, as he discussed the advisability of an appeal with his attorney and decided not to appeal at that time in hopes of working out a deal with the prosecution. Several years later, Peguero filed a habeas petition alleging that the trial judge's failure to advise him of his right to appeal entitled him to a new sentencing hearing. The district court and court of appeals for the Third Circuit denied his petition, finding that while the sentencing judge erred, Peguero had suffered no prejudice, as he was aware of his right to appeal.

The Supreme Court, in a unanimous opinion by Justice Kennedy, affirmed the lower courts and denied Peguero's petition. The Court acknowledged that the district court has a duty, under the Federal Rules of Criminal Procedure, to notify a defendant at his sentencing hearing of his right to appeal his sentence. While the district court erred in not doing so here, the defendant was not entitled to relief, as it was clearly demonstrated that he was nonetheless aware of his right to appeal, and thus suffered no prejudice as a result of the judge's error. Error itself was not enough to vacate the sentence; instead, the defendant must establish both the error and the harm caused by the error. 9-0 decision.

Next month: The new U.S. Supreme Court cases on liability under Section 1983, prison law, search and seizure law, and self-incrimination.

Craig Hemmens is assistant professor of criminal justice administration at Boise State University, in Boise, Idaho. He has a J.D. from North Carolina Central University School of Law and a Ph.D. in criminal justice from Sam Houston State University. He has published more than 60 articles on a variety of criminal justice topics.

Rolando V. del Carmen is professor of criminal justice in the College of Criminal Justice, Sam Houston State University, in Huntsville, Texas. He has several law degrees and has written numerous books and articles on a variety of legal topics. The fifth edition of his best-selling textbook Criminal Procedure (West Publishing) is at press.

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