[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] Wednesday in two cases. In Lozano v. Montoya Alvarez [transcript, PDF; JURIST report] the court will determine whether a district court considering a petition under the Hague Convention [text; JURIST news archive] for the return of an abducted child may equitably toll the running of the one-year filing period when the abducting parent has concealed the whereabouts of the child from the left-behind parent. While the US Courts of Appeals for the Fifth, Ninth and Eleventh Circuits all hold the one-year period may be equitably tolled, the US Court of Appeals for the Second Circuit held [opinion] in this case that the one-year period is not subject to equitable tolling and the settled defense is still available even where, as here, the abducting parent conceals the location of the child.

In White v. Woodall [transcript, PDF; JURIST report] the court will consider jury instructions in a death penalty case. Robert Keith Woodall pleaded guilty to murder and chose not to testify during the penalty phase. His request that the jury be instructed not to draw any adverse inference from his decision not to testify was denied, and the jury sentenced him to death. The US Court of Appeals for the Sixth Circuit granted habeas relief [opinion]. The questions before the court are (1) whether the Sixth Circuit violated 28 USC § 2254(d)(1) [text] by granting habeas relief on the trial court’s failure to provide a no adverse inference instruction even though the Supreme Court has not “clearly established” that such an instruction is required in a capital penalty phase when a non-testifying defendant has pleaded guilty to the crimes and aggravating circumstances; and (2) whether the Sixth Circuit violated the harmless error standard in Brecht v. Abrahamson [opinion] 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 plea to the crimes and aggravators.