Smith v. Titus

S
                     Cite as: 592 U. S. ____ (2021)                     1

                       SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES
    BYRON DAVID SMITH v. JEFF TITUS, WARDEN
   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
   STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
                 No. 20–633.   Decided March 22, 2021

   The petition for a writ of certiorari is denied.
   JUSTICE SOTOMAYOR, dissenting from denial of certiorari.
   Because “the Sixth Amendment right to a public trial ex-
tends beyond the actual proof at trial,” courts must meet a
high standard “before excluding the public from any stage
of a criminal trial.” Presley v. Georgia, 

558 U.S. 209

, 212–
213 (2010) (per curiam). At Byron Smith’s trial, however,
the judge cleared all members of the public from the court-
room before issuing a key evidentiary ruling. Even though
the judge did not justify the closure in accordance with the
dictates of this Court’s precedents, the Minnesota Supreme
Court found no constitutional error because it concluded
that defendants have no public-trial right in so-called ad-
ministrative proceedings. That ruling was manifestly in-
correct. Because the Minnesota Supreme Court’s decision
contravened clearly established federal law, the Court of
Appeals for the Eighth Circuit erred in denying Smith’s ap-
plication for a writ of habeas corpus. I would grant the pe-
tition for a writ of certiorari and summarily reverse.1
                             I
   In the fall of 2012, Smith was the victim of a series of
unsolved burglaries, including one that resulted in the theft
of two firearms from his home. On Thanksgiving Day, two
people again broke into Smith’s house. Smith shot them
multiple times at close range, killing them both. Although
——————
  1 Absent summary reversal, the Court should, at the very least, grant

certiorari to determine whether the Eighth Circuit’s decision can be rec-
onciled with this Court’s precedents. If nothing else, Smith’s petition
makes clear that state and federal courts are in need of further guidance.
2                          SMITH v. TITUS

                      SOTOMAYOR, J., dissenting

Smith apparently did not know it at the time, one of the
intruders, Nicholas Brady, may have participated in the
earlier burglaries.
   A Minnesota grand jury indicted Smith on two counts of
first-degree premeditated murder. The case was scheduled
for trial, where Smith planned to argue that he used rea-
sonable force in defending himself. During pretrial pro-
ceedings, the court ruled that evidence of Brady’s involve-
ment in the prior burglaries would be inadmissible at trial.
The court reasoned that because Smith did not know or sus-
pect that Brady had ever burglarized his home, that fact
was not relevant to Smith’s “state of mind at the time of the
shooting.” Electronic Case Filing in Smith v. Smith,
No. 0:17–cv–00673 (D Minn.), Doc. 2–1, pp. 2, 7 (ECF).
   The issue came up again at a pretrial hearing on the par-
ties’ motions in limine, when Smith proposed to call two
witnesses, Jesse Kriesel and Cody Kasper, to testify that
they were Brady’s accomplices in the prior burglaries.2 On
the first day of Smith’s trial, immediately after the deputy
court administrator called the case (and before the jury was
seated), the court ruled on the admissibility of Kriesel’s and
Kasper’s testimony. Before issuing its ruling, however, the
trial judge cleared the courtroom of all public spectators,
leaving only the attorneys, court staff, and Smith. See ECF
Doc. 12–4, p. 4, Tr. 749. Smith’s attorney objected to the
courtroom closure, but the court overruled him. See

ibid.
The court then

gave its reasons for precluding the wit-
nesses’ testimony:
     “[T]he pretrial ruling of the court was that the defense
     had given notice that it . . . wants to offer testimony
     from Jesse Kriesel and Cody Kasper about their in-
     volvement in prior burglaries which, of course, would
     have involved Nick Brady as well as a co-perpetrator.
——————
  2 Smith also argued that he should be permitted to call Brady’s mother

to testify about Brady’s involvement in the prior burglaries.
                  Cite as: 592 U. S. ____ (2021)              3

                   SOTOMAYOR, J., dissenting

    And the court has ruled the defendant will not disclose
    the names of Kriesel, Kasper or Brady involved in prior
    burglaries . . . . Disclosure can be made of the relevant
    facts of prior burglaries, including that they occurred
    . . . and items taken[, but t]he limitation is in effect be-
    cause . . . the court . . . finds that the defendant did not
    know . . . the identity of those who had broken into his
    home on prior occasions; and, therefore, it would be
    prejudicial.”

Id., at 4–5,

Tr. 749–750.
The court went on to explain why it had overruled defense
counsel’s objection to the courtroom closure:
    “And for that reason . . . the court is not allowing the
    press in for this ruling, because otherwise it could be
    printed, . . . and then of course it runs the risk of get-
    ting to the jury if for some reason they don’t adhere to
    their oath.”

Id., at 6,

Tr. 751.
  Smith’s attorney requested clarification, asking whether
Smith could “call Cody Kasper as a witness and ask [him]
about his involvement . . . in these burglaries and who he
was with and what he saw.”

Ibid. The court responded:

“[A]t this point, no, Cody Kasper would not be testifying to
that.”

Id., at 7,

Tr. 752.
  Immediately after making its oral ruling from the bench,
the trial court posted a written order on the public docket
that “reiterate[d] that evidence of prior bad acts by Nicholas
Brady . . . , of which [Smith] was unaware at the time of the
shooting, shall be inadmissible at trial.” ECF Doc. 2–2, p. 1.
Because Smith could present evidence that he was the vic-
tim of prior burglaries “through the testimony of . . . law
enforcement agents,” the court found “no need to seek its
admission through more prejudicial means (i.e., through
the testimony of . . . a perpetrator of the prior break-ins).”


Id., at 3.

The public order did not mention Kriesel or
Kasper by name, nor did it explain that Smith had sought
to present their testimony specifically.
4                          SMITH v. TITUS

                      SOTOMAYOR, J., dissenting

   The remainder of the trial was open to the public. The
jury found Smith guilty of two counts of first-degree mur-
der. The court sentenced him to life without the possibility
of release.
   On appeal, Smith argued that the court violated his
public-trial right when it closed the courtroom to rule on the
admissibility of Kriesel’s and Kasper’s testimony. The Min-
nesota Supreme Court rejected that argument on the the-
ory that “ ‘administrative’ proceedings,” including “routine
evidentiary rulings,” categorically “do not implicate the
Sixth Amendment right to a public trial.” State v. Smith,

876 N.W.2d 310

, 329 (2016). The court explained that the
trial court’s ruling “was administrative in nature” because
the discussion covered “an issue of evidentiary boundaries,
similar to what would ordinarily and regularly be discussed
in chambers or at a sidebar conference.”

Id., at 330.

The
court affirmed Smith’s convictions.

Id., at 336.

   Smith applied for a writ of habeas corpus in federal court,
but the District Court denied relief,3 and the Eighth Circuit
affirmed. The Eighth Circuit concluded that the Minnesota
Supreme Court’s decision did not contravene clearly estab-
lished federal law because this Court has never specifically
“addressed whether . . . ‘administrative’ proceedings . . . im-
plicate the Sixth Amendment right to a public trial.” 

958
F.3d 687

, 692 (2020). It further determined that the Min-
nesota Supreme Court did not “unreasonably apply” this
Court’s precedents, concluding that “[i]t was not objectively
unreasonable” to allow the trial court “to explain the pa-
rameters of an earlier public order on evidentiary issues in
——————
   3 Although the District Court determined that the “highly deferential

standard” imposed by the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA) precluded habeas relief, it expressed serious concerns
that the Minnesota Supreme Court’s decision “[came] perilously close to
satisfying AEDPA’s strict standards” and “demonstrate[d] precisely the
risk of a slow but steady erosion of constitutional rights.” Smith v.
Smith, 

2018 WL 3696601

, *10, *12 (D Minn., Aug. 3, 2018).
                  Cite as: 592 U. S. ____ (2021)            5

                   SOTOMAYOR, J., dissenting

a brief nonpublic proceeding.”

Id., at 692–693.
II

                               A
   The Sixth Amendment guarantees that criminal defend-
ants “shall enjoy the right to a . . . public trial.” U. S.
Const., Amdt. 6. To the Framers, secret trials “obviously
symbolized a menace to liberty,” and the public-trial right
provided a necessary “safeguard against any attempt to em-
ploy our courts as instruments of persecution.” In re Oliver,

333 U.S. 257

, 269–270 (1948). Of course, the vast majority
of judges and jurors would strive to uphold constitutional
principles even if criminal proceedings were closed to the
public. But “the public-trial guarantee embodies a view of
human nature, true as a general rule, that judges, lawyers,
witnesses, and jurors will perform their respective func-
tions more responsibly in an open court than in secret pro-
ceedings.” Estes v. Texas, 

381 U.S. 532

, 588 (1965) (Har-
lan, J., concurring). Indeed, that is why public-trial
violations are among the narrow class of “structural de-
fects” that “defy analysis by ‘harmless-error’ standards.”
Arizona v. Fulminante, 

499 U.S. 279

, 309 (1991).
   Despite the importance of the public-trial right, this
Court recognized in Waller v. Georgia, 

467 U.S. 39

(1984),
that “the right to an open trial may give way in certain
cases to other rights or interests, such as the defendant’s
right to a fair trial or the government’s interest in inhibit-
ing disclosure of sensitive information.”

Id., at 45.

But
Waller cautioned that “[s]uch circumstances will be
rare, . . . and the balance of interests must be struck with
special care.”

Ibid. To that end,

Waller announced four re-
quirements that must be satisfied before a trial court may
close a courtroom: (1) the closure must “advance an overrid-
ing interest that is likely to be prejudiced,” (2) the closure
must “be no broader than necessary to protect that inter-
est,” (3) the court must “consider reasonable alternatives to
6                           SMITH v. TITUS

                        SOTOMAYOR, J., dissenting

closing the proceeding,” and (4) the court must “make find-
ings adequate to support the closure.”

Id., at 48.

  Any doubt about the reach of Waller’s rule was dispelled
by Presley. There, this Court reiterated Waller’s holding
“that the Sixth Amendment right to a public trial extends
beyond the actual proof at 

trial.” 558 U.S., at 212

. As such,
Waller’s four-factor test “provide[s] standards for courts to
apply before excluding the public from any stage of a crimi-
nal 

trial.” 558 U.S., at 213

(emphasis added).
                              B
  Waller and Presley straightforwardly govern the court-
room closure at issue in this case. During Smith’s trial, the
court removed all members of the public and media from
the courtroom. The court then proceeded to issue an evi-
dentiary ruling that precluded several defense witnesses
from testifying.4 Because the evidentiary ruling issued at
what was undoubtedly a “stage of [Smith’s] criminal trial,”

Presley, 558 U.S., at 213

, and because the court failed to
consider, much less satisfy, any of the requirements set
forth by Waller, the courtroom closure clearly violated
Smith’s Sixth Amendment right to a public trial.
  The Minnesota Supreme Court, however, thought differ-
ently. In its view, any proceeding that might be deemed


——————
   4 No court—not the Minnesota Supreme Court, not the U. S. District

Court, and not the Eighth Circuit—has suggested that the trial court’s
conjecture that the jurors might fail to “adhere to their oath,” ECF Doc.
12–4, p. 6, Tr. 751, was sufficient to satisfy Waller’s four-factor test. It
plainly was not. See 

2018 WL 3696601

, *11 (“Th[is] Court has little dif-
ficulty concluding that the trial court’s sua sponte closure during Smith’s
trial fails the Waller test”); State v. Smith, 

876 N.W.2d 310

, 341 (Minn.
2016) (Stras, J., concurring) (“If we were to apply the Waller factors to
the courtroom closure in this case, there is little doubt that the closure
would fail them”). Indeed, the State made no objection to the Federal
Magistrate Judge’s conclusion that “the trial court’s closure would be un-
constitutional under Waller.” 

2018 WL 3696601

, *10.
                  Cite as: 592 U. S. ____ (2021)             7

                    SOTOMAYOR, J., dissenting

“administrative in nature”—including “scheduling,” “rou-
tine evidentiary rulings,” and “matters traditionally ad-
dressed during private bench conferences or conferences in
chambers”—fall outside the Sixth Amendment’s protection
entirely. 

Smith, 876 N.W.2d, at 329

–330. This novel ex-
ception sharply departs from this Court’s precedents.
   The Minnesota Supreme Court reasoned that courtroom
closures during “administrative exchanges” “ ‘do not hinder
the objectives which the Court in Waller observed were fos-
tered by public trials’ ” because such exchanges “ ‘ordinarily
relate to the application of legal principles to admitted or
assumed facts so that no fact finding function is impli-
cated.’ ”

Id., at 329

(quoting United States v. Norris, 

780
F.2d 1207

, 1210 (CA5 1986)). But even if Waller could be
read to apply only to factfinding proceedings (a dubious as-
sertion), Presley plainly cannot. Presley held that “the Sixth
Amendment right to a public trial extends to the voir dire
of prospective 

jurors.” 558 U.S., at 213

. Jury selection
hardly implicates a court’s “fact finding function.” That
does not matter, of course, because “the Sixth Amendment
right to a public trial extends beyond the actual proof at
trial” to “any stage of a criminal trial.”

Id., at 212–213.

In-
deed, it is telling that, to support its distinction between
factfinding and law-application proceedings, the Minnesota
Supreme Court primarily relied upon a case that predates
Presley by almost 25 years. See 

Smith, 876 N.W.2d, at 329

(citing 

Norris, 780 F.2d, at 1210

).
   The Minnesota Supreme Court also relied on the fact that
the closed-courtroom ruling at issue here was “an out-
growth of two previous public hearings” in which “the court
explain[ed] the parameters of its . . . written decision.”

Smith, 876 N.W.2d, at 330

. The court thus implied that
an unconstitutional courtroom closure can be cured by con-
temporaneous publication of the substance of the closed
8                          SMITH v. TITUS

                      SOTOMAYOR, J., dissenting

proceedings.5 That premise is false, as Waller made abun-
dantly clear: Even though “the transcript of the [closed]
suppression hearing was released to the public” in Waller,
this Court nevertheless found that the defendant’s Sixth
Amendment right to a public trial had been 

violated. 467
U.S., at 43

, 48.
   That conclusion makes perfect sense in light of the ori-
gins and purposes of the Sixth Amendment public-trial
right. “ ‘The requirement of a public trial is for the benefit
of the accused; that the public may see he is fairly dealt with
and not unjustly condemned, and that the presence of in-
terested spectators may keep his triers keenly alive to a
sense of their responsibility and to the importance of their
functions.’ ” In re 

Oliver, 333 U.S., at 270

, n. 25 (quoting 1
T. Cooley, Constitutional Limitations 647 (8th ed. 1927)). A
written order is no substitute for a live proceeding, espe-
cially when the order has been curated by the same court
that concealed its ruling from public view. “People in an
open society do not demand infallibility from their institu-
tions, but it is difficult for them to accept what they are pro-
hibited from observing.” Richmond Newspapers, Inc. v. Vir-
ginia, 

448 U.S. 555

, 572 (1980) (plurality opinion).
   Finally, the Minnesota Supreme Court drew an analogy
between the closed proceeding in Smith’s case and sidebar-
like proceedings such as “private bench conferences or con-
ferences in chambers.” 

Smith, 876 N.W.2d, at 329

. That
analogy is inapt. Sidebars smooth the flow of trial by allow-
ing the court to have succinct, private discussions with
counsel without having to remove the jury each time such a


——————
  5 The trial court’s order was not, in any event, a contemporaneous and

complete record of the closed proceedings. As explained by the trial
court, the very purpose of the courtroom closure was to shield certain
information about Kriesel’s and Kasper’s proposed testimony from public
disclosure. See ECF Doc. 12–4, at 6, Tr. 751.
                      Cite as: 592 U. S. ____ (2021)                       9

                        SOTOMAYOR, J., dissenting

conversation is necessary.6 When sidebar discussions be-
come too lengthy or too contentious, judges commonly ex-
cuse the jury and discuss the matter in open court. Side-
bars are thus tools of expediency for the benefit of all parties
to which, generally speaking, no party objects. In Smith’s
case, by contrast, the court closed the courtroom before the
jury was even seated (and over Smith’s objection), not to fa-
cilitate trial efficiency but for the stated purpose of conceal-
ing information from the public. Thus shielded from public
view, the court proceeded to exclude the testimony of wit-
nesses Smith thought critical to his self-defense theory.
Therefore, even accepting the Minnesota Supreme Court’s
view that some classes of sidebar-like exchanges do not con-
stitute part of “any stage of a criminal trial,” 

Presley, 558
U.S., at 213

, the trial court’s ruling here was no sidebar.7
The courtroom closure was therefore improper.
                               C
   Where, as here, a habeas applicant’s claim of legal error
“was adjudicated on the merits in State court proceedings,”
AEDPA permits a federal court to grant habeas relief only
if the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court.” 

28 U.S. C

.
§2254(d)(1). A state court’s decision is “contrary to . . .
clearly established precedent if the state court applies a
rule that contradicts the governing law set forth in [this
——————
  6 Notably, although sidebars happen out of the jury’s earshot, they oc-

cur within full view of the public and the jurors. See, e.g., State v. Mo-
rales, 

2019 ND 206

, ¶17, 

932 N.W.2d 106

, 114 (“Where a bench confer-
ence is held in view of both the public and the jury, despite their inability
to hear what is said, the public trial right is satisfied by prompt availa-
bility of a record of those proceedings”).
  7 The analogy to an in-chambers conference is even more strained.

Even assuming that certain matters related to a criminal trial may be
resolved in the privacy of the judge’s chambers, an evidentiary ruling on
a motion in limine is wholly inappropriate to that setting.
10                     SMITH v. TITUS

                   SOTOMAYOR, J., dissenting

Court’s] cases.” Williams v. Taylor, 

529 U.S. 362

, 405
(2000).
   As explained above, the Minnesota Supreme Court’s de-
cision directly contradicted Waller and Presley. The court
concluded that the trial court was not required to justify the
courtroom closure because the public-trial right does not ex-
tend to proceedings that are “administrative in nature.”

Smith, 876 N.W.2d, at 330

. This Court, however, has held
that “the Sixth Amendment’s right to a public trial extends
beyond the actual proof at trial,” 

Presley, 558 U.S., at 212

,
and that “Waller provide[s] standards for courts to apply
before excluding the public from any stage of a criminal
trial,”

id., at 213

(emphasis added). This Court has never
suggested that the Sixth Amendment might countenance
an exception for so-called administrative proceedings, much
less that such an exception would extend to an important
evidentiary ruling excluding testimony from multiple de-
fense witnesses. The Minnesota Supreme Court’s refusal to
apply the Waller factors thus contravenes this Court’s clear
precedent.
   The Eighth Circuit avoided this conclusion by artificially
cabining Waller and Presley to their facts. In Waller, this
Court found that the defendant’s public-trial right was vio-
lated when the courtroom was closed during a suppression
hearing; in Presley, the Court held the same when the court-
room was closed during jury voir dire. See 

Waller, 467
U.S., at 47

; 

Presley, 558 U.S., at 213

. In the Eighth Cir-
cuit’s assessment, the only “ ‘clearly established Federal
law’ under AEDPA” is that courtrooms may not be unjusti-
fiably closed during “suppression hearings and jury selec-
tion proceedings, 

respectively.” 958 F.3d, at 692

. Every-
thing else in Waller and Presley is, according to the Eighth
Circuit, mere 

“dicta.” 958 F.3d, at 692

(emphasis deleted).
   The Eighth Circuit’s cramped view of precedent is unten-
able. “When an opinion issues for the Court, it is not only
the result but also those portions of the opinion necessary
                      Cite as: 592 U. S. ____ (2021)                     11

                        SOTOMAYOR, J., dissenting

to that result by which [courts] are bound.” Seminole Tribe
of Fla. v. Florida, 

517 U.S. 44

, 67 (1996). Lower courts
must abide not only by the outcomes of Waller and Presley
(i.e., that the public-trial right extends to suppression hear-
ings and voir dire proceedings) but also by the “rationale
upon which the Court based [those] 

results,” 517 U.S., at
66

–67, (i.e., that the public-trial right extends to any stage
of a criminal trial). When this Court announces a legal
principle and applies it to a particular factual situation, it
is the legal principle itself, not the factual outcome, that be-
comes clearly established federal law.
   The Eighth Circuit’s interpretation of “dicta,” moreover,
contravenes both the terms of AEDPA itself and simple
logic. Take this Court’s explanation that, under AEDPA, a
state-court decision is “contrary to . . . clearly established
federal law” in either of two circumstances: “if the state
court arrives at a conclusion opposite to that reached by this
Court on a question of law or if the state court decides a
case differently than this Court has on a set of materially
indistinguishable facts.” 

Williams, 529 U.S., at 413

(em-
phasis added). The Eighth Circuit’s understanding of what
constitutes dicta would collapse this disjunctive list into the
same test. If the only “holdings” of this Court are fact-
bound outcomes, then “a conclusion . . . reached by this
Court on a question of law” and a decision of this Court “on
a set of materially indistinguishable facts” would be one
and the same.8 Imagine, too, how a state-court defendant
——————
   8 With respect to AEDPA’s unreasonable-application prong, the Court

has likewise cautioned lower federal courts against limiting the scope of
“clearly established Federal law” to factually identical circumstances.
See Panetti v. Quarterman, 

551 U.S. 930

, 953 (2007) (AEDPA does not
“prohibit a federal court from finding an application of a principle unrea-
sonable when it involves a set of facts ‘different from those of the case in
which the principle was announced’ ”); White v. Woodall, 

572 U.S. 415

,
427 (2014) (AEDPA does not “requir[e] an ‘ “identical factual pattern be-
fore a legal rule must be applied,” ’ ” and “state courts must reasonably
apply the rules ‘squarely established’ by this Court’s holdings to the facts
12                     SMITH v. TITUS

                   SOTOMAYOR, J., dissenting

would fare under the Eighth Circuit’s test if the courtroom
were closed during nearly all phases of his trial—from open-
ing arguments, to witness testimony and cross-
examination, to closing arguments, to jury instructions and
the reading of the verdict. By the Eighth Circuit’s logic, so
long as the courtroom remained open during jury selection
(as required by Presley) and any suppression hearings (as
required by Waller), the state court would not have run
afoul of any clearly established federal law. The absurdity
of this result speaks for itself.
   In the end, the Eighth Circuit erred in asserting that
“[n]either [Waller nor Presley] addressed whether a defend-
ant enjoys a Sixth Amendment right to public ‘administra-
tive’ proceedings of the type involved in this 

case.” 958
F.3d, at 692

. Those cases unequivocally hold that court-
rooms may not be closed (absent sufficient justification)
during any phase of a criminal proceeding. It does not mat-
ter whether those proceedings are purportedly “administra-
tive” or substantive, or whether they are focused on resolv-
ing questions of law or fact. Because the Minnesota
Supreme Court’s decision was contrary to Waller and Pres-
ley, the Eighth Circuit erred by affirming the denial of
Smith’s application for habeas relief.
                         *     *     *
   Today’s decision denying Smith’s request for plenary re-
view is the last in a long series of misguided rulings. First,
the Minnesota trial court violated the Sixth Amendment by
closing the courtroom without adequate justification. Next,
the Minnesota Supreme Court wrongly exempted the closed
proceeding from the Sixth Amendment entirely, relying on
a brand new administrative-proceeding exception that
finds no basis in the Constitution or this Court’s precedent.
Then, by creatively redefining the meaning of “dicta,” the
——————
of each case”).
                 Cite as: 592 U. S. ____ (2021)           13

                   SOTOMAYOR, J., dissenting

Eighth Circuit erroneously concluded that the Minnesota
Supreme Court’s decision was not contrary to clearly estab-
lished Supreme Court precedent. And today, this Court
misses the opportunity to correct these compounding injus-
tices.
   In reviewing Smith’s habeas petition, the U. S. District
Court for the District of Minnesota observed that “[t]he clo-
sure during Smith’s trial is part of a broader and disturbing
trend” in Minnesota, whose “courts are restricting public
access to criminal trials more frequently and with greater
severity.” Smith v. Smith, 

2018 WL 3696601

, *11 (Aug. 3,
2018). Justices of the Minnesota Supreme Court, too, have
expressed alarm about “ ‘creeping courtroom closure’ ” in
Minnesota trial courts. State v. Silvernail, 

831 N.W.2d
594

, 609 (2013) (Anderson, J., dissenting); see also State v.
Brown, 

815 N.W.2d 609

, 624, 626 (2012) (Meyer, J., dis-
senting) (discussing the Minnesota Supreme Court’s excep-
tion for “trivial” closures). I share these jurists’ well-
founded concerns, and I regret this Court’s refusal to pro-
vide much needed guidance to the lower courts. I would
grant Smith’s petition for a writ of certiorari and summarily
reverse the judgment of the Eighth Circuit.

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