Panel questions how to treat split Supreme Court opinions citing Demery and Anderson

A recurring thread in argument was how lower courts should treat Supreme Court opinions that include a non-presidential lead opinion. Defense counsel urged the panel to apply Anderson v. Grant County’s guidance to look to the five-justice majority rather than a non-presidential lead opinion treated later as controlling. Petrone told the court that "the Supreme Court in Anderson v. Grant County explained how courts should deal with this situation" and argued that a mistaken construction of a prior fractured opinion is not a holding.

Panel members pressed skeptical questions about whether the Court of Appeals may, in effect, tell the Supreme Court it made a mistake. The prosecutor pointed to later authorities, including Lou and Putnam, that treat Demery's lead opinion as the basis for admitting interrogation context and urged the panel to follow those construing opinions unless the Supreme Court says otherwise. The panel sought guidance about precedence, stare decisis, and whether later unanimous constructions alter the controlling rule.