On April 23, 2014, the Supreme Court issued its decision in White v. Woodall. The case presents two questions: (1) Whether the Sixth Circuit violated the Anti-Terrorism and Effective Death Penalty Act by granting habeas relief because a Kentucky trial court refused to issue an instruction to the jury telling it not to draw adverse inferences from the defendant’s silence at the sentencing phase in a death penalty case; and (2) whether the Sixth Circuit violated the harmless error standard in Brecht v. Abrahamson in ruling that the absence of a no adverse inference instruction was not harmless in spite of overwhelming evidence of guilt and in the face of a guilty pleas to the crimes and aggravators.


In an opinion delivered by Justice Scalia, the Court held by a vote of 6-3 that, because the Kentucky Supreme Court’s rejection of respondent’s Fifth Amendment adverse inference claim was not objectively unreasonable, the Sixth Circuit erred in granting the writ of habeas and the Court need not reach the harmless error issue. Chief Justice Roberts as well as Justices Kennedy, Alito, Thomas, and Kagan joined the opinion of the Court. Justice Breyer authored a dissenting opinion, which Justices Ginsburg and Sotomayor joined.

To discuss the case, we have Robert Blecker who is a Professor of Criminal Law and 8th Amendment Studies at New York Law School and author of The Death of Punishment.

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