Judge Neil Gorsuch – Nominee to be Associate Justice of the Supreme Court: Part Six – Criminal Procedure

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

Much of the question of Judge Neil Gorsuch on the second day of his confirmation hearing focused on his views on separation of powers, civil rights, and constitutional interpretation.  Comparatively little time was spent on Gorsuch’s views on criminal cases.  While we have previously explored Gorsuch’s jurisprudence on the Fourth Amendment, we will now turn to his record on the Fifth and Sixth Amendments.

Fifth Amendment – Prohibition Against Double-Jeopardy

The Double Jeopardy Clause of the Fifth Amendment bars the government from trying an individual twice for the same crime.  Practically, this means that a defendant who has been acquitted of an offense cannot be retried of the same offense.[1]  It also prevents the government from retrying a case that has been dismissed by a judge for lack of evidence.[2]  However, it does not prohibit the government from retrying a defendant where a conviction has been reversed because of a trial error unrelated to guilt or innocence.[3]

For his part, Gorsuch has shown a willingness to strictly enforce the Double Jeopardy Clause.  For example, in one case, Gorsuch overturned the conviction of a man for first degree murder and second degree murder, where the convictions were drawn from the death of the same victim.[4]  In another case, Gorsuch affirmed the dismissal of cumulative federal law punishments under the Assimilative Crime Act.[5] 

Nevertheless, Gorsuch has rejected Double Jeopardy claims in a few cases.  In one case, Gorsuch found that retrying a defendant whose initial conviction had been reversed for ineffective assistance of counsel was not barred by Double Jeopardy.[6]  In another case, he found that trying a defendant for conspiracy in addition to the underlying offense did not violate Double Jeopardy.[7]

Fifth Amendment – Right Against Self-Incrimination

The Fifth Amendment protects individuals from being forced in incriminate themselves in criminal cases.  This principle was applied by the Supreme Court in Miranda v. Arizona in ruling that any statements elicited from witnesses who had not been read their rights could be excluded in subsequent criminal proceedings.[8] 

Gorsuch has generally sided with the government in Fifth Amendment challenges to confessions.  In United States v. Braden, Gorsuch found that a defendant’s waiver of her Miranda rights was not rendered invalid by her intoxication at the time.[9]  Similarly, in another case, Gorsuch rejected a challenge against a prosecutor who had negatively commented on a defendant’s failure to present evidence.[10]

In contrast, in United States v. Benard, where the Tenth Circuit rejected Fifth Amendment challenges in a firearm possession case, Gorsuch dissented.[11]  In dissent, Gorsuch argued that the government had failed to prove that statements admitted in violation of the Fifth Amendment did not affect the defendant’s ultimate conviction.[12]

Sixth Amendment – Right to Counsel

The Sixth Amendment protects our right to counsel during criminal proceedings.  The Supreme Court has held that this right is violated when defense counsel is ineffective.[13]  A counsel’s performance is ineffective when it meets two criteria: it falls below an objective standard of reasonableness (deficient); and it prejudices the defendant (prejudice).[14]

In most of the ineffective assistance of counsel cases he addressed, Gorsuch rejected the claims on the second prong of Strickland, arguing that the deficient performance of defense counsel did not change the outcome of the trial.[15]  In a handful of cases, Gorsuch rejected the claims on the first prong of Strickland, finding that counsel’s performance was not deficient.[16]  In comparison, we were unable to find a single case in which Gorsuch found that a defendant had satisfied both prongs of Strickland and was entitled to a new trial.

Fifth Amendment – Brady Evidence

Under the Supreme Court’s decision in Brady v. Maryland, prosecutors are required to turn over all exculpatory evidence (evidence that could exonerate the defendant) to the defense.[17] In order to be turned over to the defense, evidence must be “material” to either guilt or punishment.

Gorsuch has rejected most of the Brady cases he has addressed on one of three grounds: the materiality of the withheld evidence;[18] the lack of prejudice from the withholding;[19] or the procedural bar of the Brady claim.[20]  However, in one notable case, Gorsuch excoriated prosecutors for failing to disclose emails that would have supported the defendant’s entrapment defense.[21]  While the majority of the Tenth Circuit panel affirmed the conviction in the case, Gorsuch dissented, noting:

“The conviction before us, hanging on the barest of threads and dependant on the omission of exculpatory evidence, is ‘inconsistent with the rudimentary demands of justice.’”[22]

Overall Assessment

The Fifth and Sixth Amendments of the Constitution protect our right to a fair trial.  The presumption of innocence, the bar against double jeopardy, and the right to counsel have worked to ensure that defendants in the American justice system are accorded due process before conviction.  Even in an era where most criminal cases are settled by plea bargaining, these provisions protect defendants who exercise their right to a jury trial.

Gorsuch’s overall record on these issues is mixed.  While he has sometimes shown a willingness to read these provisions strictly, protecting defendant’s rights, he has also shown a tendency to excuse government errors in producing exculpatory documents, and the deficient performance of counsel.  Overall, while he is unlikely to be the champion of criminal procedural rights Justice Scalia was, there is no reason to believe that a Justice Gorsuch would bring a prosecutorial bias to the bench.

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.


[1] See Evans v. Michigan, 133 S.Ct. 1069, 1074, 185 L.Ed.2d 124 (2013).

[2] See Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 679, 7 L.Ed.2d 629 (1962) (per curiam).

[3] See Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).

[4] Wood v. Milyard, 721 F.3d 1190, 1195 (10th Cir. 2013).

[5] United States v. Christie, 717 F.3d 1156, 1172 (10th Cir. 2013).

[6] See United States v. Bergman, 746 F.3d 1128, 1131 (10th Cir. 2014).

[7] See United States v. Mendivil, 208 F. App’x 647, 650 (10th Cir. 2006).

[8] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.E.2d 694 (1963).

[9] United States v. Braden, 458 F. App’x 751, 753 (10th Cir. 2012).

[10] Matthews v. Workman, 577 F.3d 1175, 1188 (10th Cir. 2009).  See also Littlesun v. Parker, 380 F. App’x 758, 761 (10th Cir. 2010).

[11] United States v. Benard, 680 F.3d 1206, 1215 (10th Cir. 2012) (Gorsuch, J., concurring in part and dissenting in part).

[12] See id.

[13] Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.E.2d 674 (1984).

[14] See id.

[15] See, e.g., Chavez v. Franco, 609 F. App’x 527, 528–29 (10th Cir. 2015); United States v. Hendrix, 571 F. App’x 661, 663 (10th Cir. 2014); United States v. Goodwin, 541 F. App’x 851, 853 (10th Cir. 2013); United States v. Summers, 539 F. App’x 877, 880 (10th Cir. 2013); United States v. Diaz, 500 F. App’x 798, 799 (10th Cir. 2012); Jones v. Hartley, 366 F. App’x 964, 965 (10th Cir. 2010); Williams v. Zavaras, No. 09-1518, 2010 WL 653320, at *2 (10th Cir. Feb. 24, 2010).

[16] See, e.g., Wickham v. Friel, 299 F. App’x 813, 817 (10th Cir. 2008); United States v. Cervantes, 267 F. App’x 741, 743–44 (10th Cir. 2008); United States v. Golden, 255 F. App’x 319, 322–23 (10th Cir. 2007); United States v. Mullane, 226 F. App’x 810, 813 (10th Cir. 2007).

[17] Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.E.2d 215 (1963).

[18] See, e.g., Banks v. Workman, 692 F.3d 1133, 1144 (10th Cir. 2012).

[19] See, e.g., United States v. Rivera, 478 F. App’x 509, 511 (10th Cir. 2012).

[20] See, e.g., Smith v. Addison, 373 F. App’x 886, 889 (10th Cir. 2010).

[21] United States v. Ford, 550 F.3d 975 (10th Cir. 2008).

[22] Id. at 995 (Gorsuch, J., dissenting) (quoting Brady v. Maryland) (internal quotation marks omitted).

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