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 if mistrial or hung jury) (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 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”