Brief filed: 03/01/2021
Greer v. United States
United States Supreme Court; Case No. 19-8709
Decision below 798 F. App’x 483 (11th Cir. 2020)
In this case, the Eleventh Circuit, applying plain error review, reaffirmed Petitioner’s conviction. This followed an intervening change in law, which required the government prove beyond a reasonable doubt an additional element of the crime. Although the government had not introduced evidence of this element at trial, the Eleventh Circuit nonetheless affirmed Petitioner’s conviction—which it did only by going beyond the trial evidence. This is contrary to the purpose of plain error review, which is only to correct manifest injustices, and raises fairness concerns, as numerous criminal defendants have been foreclosed from introducing evidence on plain error review. The decision below further raises Constitutional concerns under both the Fifth and Sixth Amendments. It violates the defendant’s due process rights by allowing judges to make a decision of guilt on an element of the crime—a decision reserved for the jury alone.
Clifford W. Berlow, Grace C. Signorelli-Cassady, Kelsey L. Stimple, Samantha N. Swartz of Jenner & Block, Chicago, IL; Jonathan D. Hacker, NACDL, Washington, DC.