SCOTUSBlog's Lyle Denniston says that if you missed today's U.S. Supreme Court oral argument in the Michigan murder case Metrish v. Lancaster you missed a doozy. Actually, what he said was you missed "a fascinating — and far from conclusive — seminar on who makes criminal law: courts that rule, legislatures that write laws, lawyers who try to assert defenses, prosecutors who don’t object to such defenses, or a force that might be called 'The Great Mentioner'?"
The case concerns whether a diminished capacity defense ever existed in Michigan, and if so why and for how long. In addition to a new Scalia koan -- "It's clear because it's clear" -- the oral argument was noteworthy for prompting this speculation by Justice Kennedy, who suggested that if the defendant wins:
It will change the dynamic of state supreme courts. Like us, they wait for court of appeals decisions, they wait for applications of a law, they wait for scholarly commentary. If you prevail, even if they don’t want to rush in, they will have to, because if they don’t, the issue is going to be foreclosed. It will be a dynamic of the federal courts intruding on how state courts decide the law.
Coincidentally, retired federal judge Richard Kopf was writing this yesterday at his irreverent blog Hercules and the Umpire:
Now, it is true, that the Supreme Court can really screw things up. Look at what the Supreme Court did in Booker [federal sentencing guidelines] and those line of cases. If haphazardly injecting chaos into a system is a good thing, the Supreme Court is very good at that. Perhaps that is because when you are at the “center of the universe” its hard to look out.
But back to Metrish. The State Bar of Michigan even made it into the argument. A reference by Lancaster's lawyer, Ken Mogill, to criminal jury instructions drafted by a State Bar committee prompted a protest from Justice Breyer:
If the courts allow the bar associations, in drafting jury instructions, to decide what the law is, that is worrisome, Breyer said, “when you try to create a coherent system of law.”
Not to worry, replied Mogill. Michigan hasn't turned the issue over to the State Bar, but the references to the defense in the jury instructions crafted by lawyers are evidence that the diminished capacity defense was available and that defendants could seek to rely upon it. Justice Breyer would no doubt be pleased to learn that the Michigan Supreme Court is preparing to institutionalize criminal jury instructions within its own operation.
* read to the end of Denniston's post.