The oral arguments transcript in Kansas v. Cheever is available in Adobe .pdf format.
Amy Howe posts, "Argument analysis: Defendant meets skepticism on question presented in Fifth Amendment privilege case," at SCOTUSblog.
On Tuesday, Justice Sonia Sotomayor asked a lawyer for the auto giant Daimler AG whether he “cared how you win.” Today, Sotomayor pressed former Acting Solicitor General Neal Katyal to tell the Court “which way would you rather lose?” Katyal was appearing on behalf of Scott Cheever, who was convicted of capital murder for the death of a sheriff, only to have his conviction overturned by the Kansas Supreme Court. By the time the oral argument was over, it appeared that the lower court’s ruling throwing out Cheever’s conviction is in real jeopardy, though Cheever could be well positioned to ultimately win his case back in the Kansas courts, which may have been his lawyers’ strategy all along.
The issue in Kansas v. Cheever was whether Cheever waived his privilege against self-incrimination when he introduced expert testimony to support his contention that he could not have intended to kill the sheriff because he was in a state of “voluntary intoxication.” If so, he arguably opened the door to the state countering with its own expert, who had conducted a court-ordered psychiatric examination of Cheever. Arguing on behalf of the state, Kansas Attorney General Derek Schmidt fielded several questions from Justices Scalia and Kennedy about whether his proposed rule would apply more broadly. If, Justice Scalia asked, once Cheever decided to make his mental state an issue, he could no longer rely on his Fifth Amendment privilege, wouldn’t the same be true even if Cheever didn’t call an expert, but instead testified himself? Would the state still be allowed to call an expert? Schmidt responded that the state was just seeking a “rule of parity,” so that the Court in this case did not need to decide whether to draw the line.
"Death penalty in Kansas cop killing case gets aired before Supreme Court," is by Michael Doyle of the McClatchy Washington Bureau.
Supreme Court justices sounded deeply skeptical Wednesday about the constitutional claims made by a meth-addled cop killer from Kansas.
The killer, Scott D. Cheever, admits shooting Greenwood County Sheriff Matt Samuels in January 2005 but says methamphetamine use rendered him incapable of premeditation. He also says prosecutors should not have been able to counter a defense psychiatrist with a government psychiatrist who had examined Cheever under court order.
During an hour-long oral argument Wednesday morning, conservative and liberal justices alike effectively dismantled Cheever’s case.
“Assuming the incredulity of my colleagues continues with your argument,” Justice Sonia Sotomayor instructed Cheever’s attorney at one point, “which way would you rather lose?”
A broad court ruling could open the door for many more waivers of the Fifth Amendment protection against self-incrimination. More likely, a narrow ruling would return Cheever’s case to the Kansas Supreme Court for a determination of what limits should be placed on the testimony of the government psychiatrist.
Either type of decision would represent a victory for Kansas Attorney General Derek Schmidt, who was presenting his first oral argument before the high court.
The SCOTUSblog case file for Kansas v. Cheever contains all briefing.
Earlier coverage of the Kansas case begins at the link.