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Renado Smith and Richard Delancy v. United States

Paid petition · United States Court of Appeals for the Eleventh Circuit, No. 17-13265 , 17-13330 · judgment July 2, 2019

Certiorari denied · January 13, 2020
Pre-decision estimate: 29% cert probability (95% interval 21%–39%)

Before the decision, about 7.1× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a petition filed soon after the judgment below, and a circuit split argued in the petition.

Questions presented

The Confrontation Clause permits prosecutors to introduce the out-of-court testimonial statements of an absent witness only if the witness is “unavailable” despite the government’s “good-faith effort to obtain [the witness’s] presence at trial.” Barber v. Page, 390 U.S. 719, 724-725 (1968). The questions presented are:

  1. Whether the government makes a good-faith effort to obtain a witness’s presence at trial if it curtails its search for that witness because it already has the witness’s deposition testimony.

  2. Whether the government makes a good-faith effort to obtain a witness’s presence at trial if it forgoes an “easy” investigative step that it has “reason to believe” would procure the absent witness.

  3. Whether a witness is “unavailable” if the government releases the witness from its custody without making any arrangements to secure the witness’s presence at trial. (i)

Counsel of record

For petitioner
Neal Kumar Katyal
Milbank LLP

For respondent
Noel John Francisco
Jones Day

Case

Conference history
Distributed for 1 conference

Amicus briefs
3 cert-stage

Proceedings

  1. Jan 13 2020
    Petition DENIED.
  2. Dec 23 2019
    DISTRIBUTED for Conference of 1/10/2020.
  3. Dec 23 2019
    Reply of petitioners Renado Smith, et al. filed. (Distributed)
  4. Dec 09 2019
    Brief of respondent United States of America in opposition filed.
  5. Oct 29 2019
    Motion to extend the time to file a response is granted and the time is further extended to and including December 9, 2019.
  6. Oct 28 2019
    Motion to extend the time to file a response from November 18, 2019 to December 9, 2019, submitted to The Clerk.
  7. Oct 18 2019
    Brief amici curiae of Criminal Defense Organizations filed.
  8. Oct 18 2019
    Brief amicus curiae of The Constitution Project at the Project On Government Oversight filed.
  9. Oct 18 2019
    Brief amicus curiae of Florida Association for Criminal Defense Lawyers filed.
  10. Oct 10 2019
    Motion to extend the time to file a response is granted and the time is extended to and including November 18, 2019.
  11. Oct 10 2019
    Blanket Consent filed by Petitioner, Renado Smith, et al.
  12. Oct 09 2019
    Motion to extend the time to file a response from October 18, 2019 to November 18, 2019, submitted to The Clerk.
  13. Sep 18 2019
    Petition for a writ of certiorari filed. (Response due October 18, 2019)