When the Supreme Court earlier this week affirmed the death penalty judgment in People v. Sivongxxay, Justices Goodwin Liu and Mariano-Florentino Cuéllar both dissented in part, asserting the penalty should be reversed because, they said, an inadequate jury trial waiver was prejudicial error. The majority found the error to be harmless, based on a theory — Justice Liu’s separate opinion reports — first suggested by the court when it solicited supplemental briefing after oral argument.
The Attorney General’s supplemental brief endorsed the new theory, but Justice Liu takes the brief to task for the way it did so. In a long parenthetical (Justice Liu doesn’t use footnotes), his opinion says in part, “I find it troubling that the Attorney General’s supplemental brief contends — at the eleventh hour, with no explanation for its belated epiphany — that our precedent ‘virtually compels’ the harmless error analysis in today’s opinion. The absence of any explanation risks the perception that the Attorney General’s new contention is opportunistic or that his initial briefing, having missed a theory ‘virtually compel[led]’ by our precedent, was of questionable competence. Neither does wonders for the government’s credibility.”
Justice Liu has expressed similar criticisms before.