Today in Supreme Court History: August 28

Willhauck v. Flanagan, 448 U.S. 1323 (decided August 28, 1980): Brennan denies stay of prosecutions by two D.A.’s arising from high speed car chase through adjacent counties; defendant had argued violation of Double Jeopardy clause and Brennan suggests that there is a double jeopardy exception for Younger abstentions, but jeopardy would not “attach” until jury was sworn in (I always thought that phrase was pretty meaningless; to say “jeopardy attaches when the jury is sworn in” means very little -- defendant can be retried in a number of situations) (defendant eventually got one prosecution dismissed on double jeopardy grounds, but look how long it took, 953 F.2d 689 (1st Cir. 1991) -- and it wasn’t even a death penalty case)

Penry v. Texas, 515 U.S. 1304 (decided August 28, 1995): Rehnquist puts his foot down and denies 59-day extension of time to file cert petition; extensions in earlier cases were “when I was a new Circuit Justice” and complexity of case cannot be a reason for extension because counsel’s own Circuit Court brief ran 375 pages with 132 points of error and he must now have “considerable familiarity with the record”