Archive for March, 2009

Why Liberal Justices Agree that “Reverse Batson” Error Doesn’t Violate Due Process

Tuesday, March 31st, 2009

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In a unanimous decision this morning, the Supreme Court ruled that “there is no freestanding constitutional right to peremptory challenges,” during jury selection in criminal trials. So even if a judge erroneously refuses to let a defendant challenge a juror, so long as that juror couldn’t be challenged for cause, there is no constitutional violation if that juror is seated.

This was an important case, as the issue really had never been decided before. It may perhaps be surprising that even the more liberal Justices agreed with such an important and apparently anti-defendant ruling as this one. But it really makes sense if you think about it. First, a quick summary of the case:

Writing for the unanimous Court in Rivera v. Illinois, Justice Ginsburg put the issue pretty well in her opening paragraph: “If all seated jurors are qualified and unbiased, does the Due Process Clause of the Fourteenth Amendment nonetheless require automatic reversal of the defendant’s conviction?”

Michael Rivera was on trial for first-degree murder. During jury selection, each side was allowed to make peremptory challenges to potential jurors, who otherwise could not have been excluded for cause. Rivera’s lawyer, having already exercised two peremptories against women, now made a third challenge against a female.

The trial judge, said no way, finding sua sponte that the defense was excluding jurors on the basis of sex in violation of Batson v. Kentucky, 476 U.S. 79 (1986). The juror was seated, and was then selected as the foreperson of the jury. The jury convicted Rivera, and sentenced him to 85 years in prison.

Rivera appealed, saying that the peremptory challenge should have been allowed, and that the error required reversal. The state supreme court decided that any error in seating the juror would have been harmless.

On appeal to the U.S. Supreme Court, Rivera first argued that the erroneous denial of a peremptory challenge means the jury contains someone who shouldn’t have been there, so the jury is illegally constituted, and therefore its verdict is per se invalid. The review shouldn’t be for harmless error, because nobody knows what a proper jury would have thought, and so reversal must be required.

The Court didn’t buy those arguments. Peremptory challenges aren’t guaranteed by the Constitution, but instead are permitted by individual state laws, and are merely “a creature of statute.” States can and do prohibit them altogether. So even a mistake as alleged here wouldn’t rise to the level of a constitutional violation.

The Due Process Clause of the 14th Amendment doesn’t elevate the state law to a federal concern, either, because that Clause only protects fundamental fairness in criminal trials. It does not protect the mere “meticulous observance of state procedural prescriptions.” An error of state law isn’t automatically a Due Process violation. And to hold now that a one-time, good-faith misapplication of Batson violates Due Process would probably create the wrong incentive, and make judges less likely to apply Batson in future cases.

So, focusing on fundamental fairness, Ginsburg concluded that the judge’s refusal to reject the juror didn’t have any effect. Rivera’s right to a fair trial before an impartial jury wasn’t affected, because everyone agreed that none of the jurors could have been removed for cause, and none were biased. So it doesn’t matter whether a different panel might have decided differently. All that matters is that the jury did not violate the Sixth Amendment right to an impartial jury.

The Court also rejected “the notion that a juror is constitutionally disqualified” just because she was aware that the defendant had challenged her. Rivera got a fair trial, with an impartial jury, so he got “precisely what due process required.”

The Court’s decision was not only unanimous, but strongly stated. This may have come as a surprise to Court-watchers who might expect some of the more liberal Justices to argue in favor of more rights for criminal defendants.

However, it could not have been a surprise to any who witnessed the oral arguments. Those very Justices on whom Rivera probably relied were his harshest critics. Ginsburg expressed disdain, calling the argument that a wrongly-seated jury is per se invalid “quite a stretch.” Souter pointed out that the Illinois Supreme Court gets to interpret its state law, not the U.S. Supreme Court, and Illinois had held that there wasn’t a violation in the first place. Breyer observed that Rivera’s arguments would create a huge “slippery slope” of making a constitutional issue out of every potential jury defect. Kennedy accused Rivera of making a sweeping proposition requiring massive supervision and intrusion of state courts by federal courts. Ginsburg and Souter also aggressively challenged Rivera’s interpretation of the facts and the decision below. Stevens even suggested that the Court didn’t have jurisdiction to review the case in the first place.

By the end of the argument, it was clear that Rivera was going to lose this one badly. Kennedy’s last question, to the U.S. Government’s lawyer, was essentially along the lines of “you’re going to win, but there are lots of alternative ways we could rule in your favor, so which one do you think is the most straightforward?”

Apart from the clues at oral argument, this ruling shouldn’t really be a surprise to anyone familiar with the ever-evolving law of peremptory challenges. Swain said systematically excluding members of the defendant’s race from the jury pool violates the defendant’s rights. Batson and its progeny expanded the rule to say that prosecutors who exercise peremptories to discriminate against any race or sex (not just the defendant’s) violate, not the defendant’s rights, but the rights of the public to serve on juries (though the penalty benefits not the public but the defendant). J.E.B. v. T.B. extended that rule to say defendants can’t violate the public’s rights any more than prosecutors can (the “reverse Batson” rule).

These cases show that the balance has shifted — away from protecting individual defendants from discrimination that keeps people like them out of the jury box, and towards protecting a generalized state interest in protecting society from the kinds of discrimination we don’t like.

So the Court wasn’t about to stand in the way of the arrow of history, by imposing a rule that would be a disincentive to courts, discouraging them from stopping discrimination.

Looked at that way, it’s hardly surprising that the more liberal Justices were the ones most antagonistic to the defendant in this case. Ruling in Rivera’s favor would have meant undoing liberal protections against general discrimination in society. There was no concrete reason to think Rivera’s jury was actually unfair, so there was no strong sentiment in his favor. The liberal interest in societal justice simply outweighed any concerns for individual fairness here.

DNA Makes Cops Ignore the Real Evidence, and Chase Shadows

Friday, March 27th, 2009

 

For 16 years, German police have been hunting a fiendish serial killer. Every time they have an unsolved crime, the DNA of an unknown woman has been found at the scene. This phantom killer baffled police with her ability to commit totally unrelated murders without any evidence (apart from traces of her DNA) tying them together.

And when we say “unrelated,” we mean it. The DNA was found on documents at an arson scene, a cop killing, and dozens of other kinds of murders unconnected by geography, motive, means or victim.

Dubbing her “the phantom of Heilbronn,” the cops focused at least 40 investigations in Germany and Austria on identifying this “woman without a face.” When her DNA was found at the scene of a murdered policewoman, a 300,000 (about $375,000) reward was offered for information leading to her arrest.

It turns out, however, that all those unrelated crime scenes DID have something in common, apart from the mystery woman’s DNA. But in all those 16 years, nobody put two and two together.

What did they have in common? The DNA kits used by the cops themselves.

Yup, the swabs used to collect the DNA samples were contaminated. A female worker at the manufacturer apparently wasn’t working under completely sterile conditions, and her DNA was getting on the Q-Tips. As usual, the evidence that made no sense was wrong, and the simplest explanation was the right one.

So the police spent 16 years thinking that her DNA was the DNA of the killer. And instead of focusing on evidence that would have solved these crimes, they followed a wild goose chase that has left nothing but injustice. DNA is the wonder evidence of our time, so when it pointed the way the cops jumped at that conclusion.

Yet another reason why DNA evidence isn’t necessarily as damning as people might think.

Supreme Court: If Prosecution Breaches Plea Deal, OBJECT!

Wednesday, March 25th, 2009

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Voting 7-2, the Supreme Court today ruled that a defendant cannot appeal when the prosecution reneged on a plea bargain, unless the issue was preserved before the trial court.

In his majority opinion for Puckett v. U.S., Justice Scalia cleared up a split among the circuits. There had been differing opinions on whether this situation was one of the exceptions to the general rule requiring that issues be preserved below. He sort of signaled his take on the issue with his first sentence: “The question presented by this case is whether a forfeited claim that the Government has violated the terms of a plea agreement is subject to the plain-error standard of review set forth in Rule 52(b) of the Federal Rules of Criminal Procedure.”

The facts of the case are going to sound familiar to anyone who’s been doing criminal law for very long. The defendant was indicted for armed robbery, and negotiated a plea deal. As part of the deal, the prosecutors promised to tell the court that he “has demonstrated acceptance of responsibility and thereby qualifies for a three-level reduction…” But then, after the plea but before sentencing, the defendant got in trouble again, this time for a scheme to defraud the Postal Service. The prosecutors changed their mind, in light of this new information, and told the sentencing court that the defendant should *not* get credit for accepting responsibility.

The defense attorney called foul, and reminded the court of the terms of the plea agreement. The judge turned to the prosecutor, who dismissed it as having been written a long time ago, and the new crime changed the situation. The judge decided that he couldn’t grant a reduction, and wouldn’t even if he could, given the new crime. He did impose a sentence at the low end of the range, however.

“Importantly,” to Scalia, “at no time during the exchange did Puckett’s counsel object that the Government was violating its obligations under the plea agreement by backing away from its request for the reduction. He never cited the relevant provision of the plea agreement. And he did not move to withdraw Puckett’s plea on grounds that the Government had broken its sentencing promises.”

On appeal, the Fifth Circuit held that error had occurred, and it was obvious, but it did not cause prejudice, so it was not “plain error.” Basically, the defendant couldn’t demonstrate that his ultimate sentence would have been any different, whether the prosecution had recommended the reduction or not, given the judge’s disinclination to grant it in the first place.

But there was a conflict among the circuits as to whether the plain-error test applies to unpreserved claims of breached plea agreements. So the Supreme Court granted cert.

In finding that Rule 52(b) does apply to unpreserved claims of breached plea agreements, Scalia started with the principle that plain-error review is rightly the norm for unpreserved errors, because “anyone familiar with the work of courts understands that errors are a constant in the trial process, and that a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal.” Exceptions to the normal rule do exist, of course. But should this situation be one of them?

Everyone took it as given that the government had broken its agreement. The issue is whether, in the absence of an objection below, anything could be done about it on appeal here.

The defendant first argued conceptually that the government’s breach of the plea agreement made that agreement void, and so voided the guilty plea. Scalia pointed out that breaching a contract does not make the whole contract void and invalid from the first; the contract remains enforceable.

The defendant next argued that there was precedent in *Santobello*, where a broken plea promise was grounds for reversal in the interests of justice, even though the breach did not affect the judge’s decision and thus the error was harmless. Scalia countered that whether or not an error is harmless is not the issue here, which is whether the error can be subjected to plain-error review. In *Santobello*, moreover, the issue clearly had been preserved below.

The defendant then argued that applying Rule 52(b) makes no sense, because objecting to a plea breach is futile; the prosecution’s wrongful action cannot be undone. The judge will have heard the improper recommendation, and can’t unhear it. Scalia stated that requiring an objection prevents defendants from “seeking a second bite at the apple” after waiting to see if they like the outcome or not. Also, some breaches are curable. And those that aren’t can be remedied by the trial court, such as by withdrawal of the plea, or by resentencing before a different judge.

The biggest point the defendant raised was that plea breaches fall within “a special category of forfeited errors that can be corrected regardless of their effect on the outcome,” so that even if there was no prejudicial effect, there still ought to be a reversal.

Scalia responded by categorizing the exceptions that do exist: errors that “necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence,” or that “defy analysis by harmless-error standards by affecting the entire adjudicatory framework,” or which involve “difficulty of assessing the effect of the error.”

None of those considerations applied here, so Scalia decided that this situation just didn’t fit as an exception to the general rule.

Justice Souter, joined by Justice Stevens, dissented. Although the defendant wasn’t terribly sympathetic, and although they agreed that the plain-error test is the right one to apply here, the dissenters felt that the Court was looking at the wrong effects.

The majority (and apparently the parties, too) looked at the effect of the error as merely being the length of the sentence, which probably wasn’t affected here. Souter, in contrast, saw the effect as being “conviction in the absence of trial,” or in the absence of “compliance with the terms of the plea agreement dispensing with the Government’s obligation to prove its case.”

The criminal conviction itself, not the length of sentence, is the effect on substantial rights according to Souter. Due Process and fundamental fairness require, “before the stigma of conviction can be imposed,” either a trial or a plea agreement honored by the Government. “It is hard to imagine anything less fair,” he stated, “than branding someone a criminal… because he entered a plea of guilty induced by an agreement the Government refuses to honor.” Sentencing after the prosecution breached a plea agreement would always, by definition, be plain error.

Justice Souter’s approach is, of course, attractive to those who value the fairness and integrity of jurisprudence. However, it is hard even for this defense attorney to agree that all such sentences are necessarily plain error, especially when an adequate remedy (getting to take one’s plea back) is available if the defense attorney is paying attention.

Judge Tackles Defendant in Court

Wednesday, March 25th, 2009

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During a restraining order hearing yesterday, a judge in Fort Lauderdale failed to show restraint himself.

As this courtroom video shows (about 40 seconds in), Judge Ian Richards was informing the defendant that he was going to jail for violating the restraining order, when the defendant John Charles Reasee suddenly attacked the complaining witness. The defendant yanked his ex-girlfriend over to the bench, and landed at least one blow with a closed fist.

Although court officers and a lawyer reacted fast to try to pull Reasee off, the judge joined them in the fray. Judge Richards swiftly clambered over the bench, getting to the defendant at about the same time as the bailiff.

Now, judges certainly are in charge of enforcing courtroom decorum. And he was certainly doing a good deed by rushing without hesitation to the aid of a woman being attacked. But judges aren’t supposed to get personally involved, and his assistance wasn’t really needed. We think it was a significant error of judgment for the judge to jump in, instead of letting the officers do the job they’re trained to do.

Still, the new judge has certainly earned a reputation that we’d expect to last for the rest of his time on the bench.

White Collar Crime Going Prime Time

Wednesday, March 25th, 2009

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What with white-collar crime being such big news these days, it was only a matter of time: The Hollywood Reporter reports that the USA Network is about to pick up a new series, “White Collar.”

Now that USA’s popular detective series “Monk” is ending, the cable network is looking for a new original series to lead in to crime comedy “Psych.” “White Collar” is described by the network as being “about the unlikely partnership of a con artist and an FBI agent who have been playing cat and mouse for years.”

It sounds to us like a takeoff on “Catch Me If You Can,” the 2002 dramedy based on real-life con man Frank Abagnale, Jr. Though entertaining, the movie wasn’t the most socially relevant story when it came out. But now that everyone’s saturated with Madoff (a topic we’ve studiously avoided, since everyone else is already talking about it), and as it looks like prosecutors are going to be announcing even more con and scam cases in the coming months, the timing certainly seems right now.

The pilot was green-lighted back in October. It stars Matthew Bomer (pictured, left) as the con artist, and Tim DeKay (right) as the FBI agent. Bronwen Hughes (“The Kids in the Hall,” “The L Word,” “Forces of Nature”) directed.

Cell Site Data — Is a Warrant Really Required?

Monday, March 23rd, 2009

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The 3rd Circuit is hearing an interesting appeal on whether the government needs to get a warrant before demanding cell site data from phone companies.

Cell sites are those transmitters you see on rooftops and towers, beaming and receiving cell phone communications. Their range varies from a few blocks to a circle twenty miles across, depending on their power and local geography. When a cell phone is being used, it’s communicating with a particular cell site.

Phone company records will show what cell site was being used by a particular phone at any given time. Law enforcement often requests such records, to help narrow down possible locations for an individual using a phone. This can be particularly useful if the individual is in motion, because his signal will be picked up by a series of cell sites, which can be used to map his progress.

This is passive data, as opposed to an active “ping” whereby a signal is sent directly to a particular phone for the purpose of identifying its location.

Most phone companies will not provide real-time cell site data to law enforcement without a court order. So court orders are routinely sought, often in conjunction with pen registers (calling records which show the time and phone number for calls sent and received). 18 U.S.C. § 2703 permits such an order when there are “specific and articulable facts showing that there are reasonable grounds to believe that… the records… are relevant and material to an ongoing criminal investigation.” These are called 2703(d) orders, and are different from eavesdropping warrants requiring probable cause.

In this case, the feds asked for a 2703(d) order, but unusually did not seek real-time cell site info. Instead, they asked for an order permitting them to get historical data. They’d been investigating drug trafficking, and were tracking one subject’s phones already. During the investigation, they identified what they believed to be the phone of their subject’s supplier. Physical surveillance proving difficult, the feds wanted to see historical cell site data, to see if they could figure out how the supplier had moved around.

The magistrate denied that request, holding that a request for real-time data would have been fine, but that historical data is not permitted pursuant to a 2703(d) order.

(As an aside, the investigators learned of the supplier’s number in June 2007, but didn’t apply for the historical data until February 2008. We know the feds take an inordinate amount of time in their wire and pen applications — one reason why they do comparatively few of them — but eight or nine months is astonishing.)

The feds appealed to the district court, arguing that the magistrate’s decision was bizarre. Instead, however, the district court went further than the magistrate had, and ruled that a warrant based on probable cause would be required for such historical records.

Although we are on the defense side, it seems as though both the magistrate and the district court judge got things backwards. Real-time cell site data, one would expect, is significantly more intrusive of privacy than historical data from up to six months ago. Real-time data can be used to locate where a person is now. The law clearly permits this more invasive search to be performed with a mere order. To require a probable cause warrant for the clearly less-invasive search makes little sense.

The ACLU, meanwhile, has stepped in with an amicus brief opposing the government. They basically argue that, yes, a 2703(d) order would have been sufficient, but the magistrate had the discretion to require a probable cause warrant instead. They then argue that, no, a 2703(d) order would not have been sufficient, and in fact a probable cause warrant ought to be required for all cell site information. People don’t know their cell site data is being collected, so they have an expectation of privacy.

We’re frankly not thrilled with the quality of either side’s brief. But the ACLU wins the “silliest syllogism” award for this one: They hypothesize a subject named Bob. Bob is talking on his cell phone as he enters his office, so with real-time cell site info the police now know he’s in his office. Bob is surveilled to his house. Once inside his house, he makes another call. But without the cell-site info, the cops would have no reason to believe the cell phone never left Bob’s office. Riiiight.

This is a case of first impression in the Third Circuit. One could easily see them ruling against the feds, too.

Feds who, by the way, brought this on themselves.

Seriously. They could have simply subpoenaed the historical business records without going to a judge in the first place. Asking permission to do something novel is the best way to create a precedent saying you can’t do it. But subpoenaing already-existing business records from phone companies is strictly routine. If they’d done it that way, we’d wager that the court would even have compelled the phone company to comply, if the need arose.

Massive Rise in Hung Juries? Deal With It.

Monday, March 23rd, 2009

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Although juries have existed in one form or another since ancient times, the jury as we now know it originated in 12th-century England. At first an accusatory formality, the jury evolved into a check on governmental power. Nowadays, an accused’s right to have the evidence against him judged by members of his community is one of the most essential requisites of criminal justice. Juries also ensure a public perception that the system is just — a necessary precondition for the system to actually work.

But justice requires that juries actually make a decision. And new statistics show that they’re refusing to in ever increasing numbers.

When someone is accused of a crime, the law prescribes certain actions that can be taken by the justice system. It’s so formulaic that much of it could be done by a computer: if the defendant did X, Y and Z, then he goes to prison; if he only did X and Z, he gets probation; if he only did X, then he does not get punished. But before the law can be applied to the facts, the law needs an official version of the facts. We need it so we can move on to the next step, so defendants and victims and witnesses can get on with their lives. A computer can’t do that. It is the job of real people, the jury, to define that official version of the facts.

If a jury refuses to make a decision, justice is delayed. The accused must suffer continued anxiety and uncertainty until another trial closes this distressing chapter in his life. He must double down on the expense of defending himself, and on the stress it puts him and his family through. Victims and witnesses have to go through the trauma of testifying all over again. Another pool of jurors has to take time out of their lives.

But modern sensitivities have made the hung jury ever more commonplace. We’re not supposed to be judgmental. For decades, ethical relativism and cultural sensitivity have been a major part of our socialization. Gen-X kids like me, taught to be politically correct in college, are now entering middle age. The Millennials now entering the workforce have learned these sensibilities since birth, and for many it is viscerally wrong to pass judgment on another. This oversimplifies the matter, of course, but the fact remains that a huge portion of the population now feels significantly more uncomfortable in the role of juror.

These same generations had parents, teachers and professors who lauded the civil rights protests of the 1950s and the antiwar protests of the 1960s. Now they are more likely to use their jury service as a protest — they don’t care what the facts are, they have an agenda in conflict with their role as jurors. Maybe they simply don’t want to put another young black man in jail, and further decimate their community. Maybe they simply want to use their jury service as a vague protest against an oppressive system. We’ve seen plenty of those kinds of jurors, too.

The results have been dramatic in recent years, as the numbers of hung juries have skyrocketed. In the birthplace of the modern jury, the BBC reports that hung juries increased 30.7% in 2007, and a whopping 70.6% in 2008.

Still, this isn’t cause for alarm. Careful jury selection can often identify people who simply cannot pass judgment, as well as those who have a political agenda. Lawyers and judges can use voir dire to educate jurors about the importance of their role, so that they overcome their discomfort and do their job.

Alarmists want to prevent hung juries by allowing majority verdicts in criminal trials. If a holdout is holding up justice, reformers would negate that holdout’s influence, and let a vote of 10 out of 12 be sufficient (as it already is in England). But that is an end run around justice — the principled holdout who refuses to give in to pressure is an iconic figure in public perception. Norman Rockwell painted it, for crying out loud.

No, we’re going to have to play the hand we’re dealt. If the venire is more likely to harbor holdouts, we are just going to have to do a better job of getting across to them, or weeding them out. The jury is the democratic participation of the community in the administration of justice, a system better adapted than any other to the protection of the individual against oppression by the state. As Lord Devlin said, a tyrant cannot rise unless he “overthrow or diminish trial by jury.”

Doctors: Got “Incentives?” Better Get a Lawyer.

Friday, March 20th, 2009

 

We’ve written about an upcoming wave of white-collar prosecutions, especially against Wall Street types. But wait, there’s more: the feds are now about to start prosecuting doctors.

The Department of Justice and the Inspector General of the Department of Health and Human Services are about to start prosecuting physicians who receive inappropriate incentives from manufacturers and sellers of pharmaceuticals and medical devices. Doctors who have accepted such incentives face criminal prosecution, as well as civil fines and being barred from participation in Medicare and Medicaid programs. Doctors who have received significant incentives from medical marketers might want to seriously consider consulting a good white-collar defense attorney.

Of course, incentives are a commonplace in medical marketing. And of course the purpose is to somehow influence which drug a doctor intends to prescribe, or what equipment a doctor uses. A wide range of incentives are offered, not just the free pens, prescription pads and trinkets routinely handed out. Expensive equipment can be provided for free or at a deep discount, in return for minimal obligations such as a product recommendation or letting one’s office be used (albeit rarely) as a training facility. In extreme cases, sellers actually pick up the tab for travel to seminars or other expenses, pay “advances on royalties” for helping develop products, or simply pay cash kickbacks.

In the past, it has usually been the manufacturers who got prosecuted for making kickbacks or bribes, often paying millions in fines and undertaking the supervision of monitors. What’s new now is the federal focus on the doctors themselves, on the receiving end.

Many doctors may not think they’re doing anything wrong by accepting incentives from sales folk. After all, it’s the norm. And so what if a doctor got a free trip to the conference, if he continues to make his prescription decisions independently and based on the actual needs of the individual patient?

The government sees this as criminal partly because such payments are opaque. A patient might not be so trusting of a prescription for FancyPharm if he knew his doctor was getting comped by that company. A patient might not have the same confidence in her eye surgeon if she knew that he didn’t actually select and purchase his laser equipment himself, but instead got it for nothing.

Another reason is the perception that medicines and procedures would be improperly prescribed, because the incentives had an undue influence on the doctor’s decisions. Unnecessary expense and harm could result.

The main tool that prosecutors have here is the federal Anti-Kickback Statute (formally known as “the Medicate and Medicaid Patient Protection Act of 1987,” 42 U.S.C § 1320a-7b). It basically provides up to 5 years imprisonment and $25,000 in fines.

The feds are most likely to go after those who allowed marketers to pay for their consulting fees, travel to seminars or other expenses, or who accepted advances or payments, or who accepted large rebates or extreme discounts without proportionate consideration, or otherwise received remuneration that could have influenced their decision making.

Lewis Morris, chief counsel for the Inspector General, told the New York Times last week that “what we need to do is make examples of a couple of doctors, so that their colleagues see that this isn’t worth it.”

When law enforcement says they are going to make examples of people, one might think that this means they will carefully pick and choose their cases, cherry-picking only the most obviously criminal acts with the strongest evidence. However, in real life, that’s not always the case.

Especially in cases like these, where the evidence tends to be more circumstantial (absent clearly incriminating admissions, recordings or emails), and where the conduct is very often in the gray area of culpability, prosecutors may not have many rock-crusher cases in the first place. And they certainly won’t have enough cases at first to do much cherry-picking in any event.

No, they have announced their desire to make examples of people, and we predict they will go after whatever crosses their desk.

Cases are going to come from marketers who got caught trying to bribe someone else, who are then flipped to inform (and wear a wire) against the other doctors they deal with. Those are the easiest cases for law enforcement to initiate. Other cases may come from third-party complaints or referrals, but those are rare in secret one-on-one deals such as those being investigated here.

If any doctors out there think they might have had dealings with a marketer that could get them in trouble, it might be wise to get counsel from a good white-collar defense attorney sooner rather than later.

First Attempt to Admit MRI Lie Detector Evidence in Court

Wednesday, March 18th, 2009

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In October, we reported that functional magnetic resonance imaging (better known as fMRI) is being touted as an honest-to-goodness lie detector. Unlike a polygraph, which required interpretation of physical bodily reactions, an fMRI looks at real-time brain activity to see if brain areas associated with lying are activated during any given answer.

The issue, of course, was whether such evidence would be admissible in court. Polygraphs aren’t admissible (except in New Mexico) because they’re more art than science. But fMRI is all science, and brain scans are already widely admissible at sentencing. They are now de rigeur in capital cases, and the Supreme Court based its ruling precluding execution of adolescents on brain scan evidence.

When we wrote about it, the issue was purely hypothetical. Nobody had yet tried to introduce such evidence in court. But now, a court in San Diego is going to have to decide that very issue.

The case is a child protection hearing. The defendant is a parent accused of committing sexual abuse. Defense counsel is seeking to introduce fMRI evidence for the purpose of proving that the defendant’s claims of innocence were not lies.

If admitted, this will be the first time fMRI evidence will be used in an American court.

The fMRI in this case was performed by a San Diego company with the somewhat uninspiring name “No Lie MRI.” The company’s name isn’t so much an issue, however, as the actual reliability of these tests on an individual basis.

Although general regions are known to be associated with lying, logic, decision making, etc., their specific location in each individual varies. So some baseline analysis would be required for any person, so that his brain activity during questioning can be compared to a valid exemplar of his own actual brain.

fMRI basically measures oxygen levels in the brain’s blood vessels. When a part of the brain is being used, that part of the brain gets more blood. Studies have indicated that, when someone lies, more blood is sent to the ventrolateral area of the prefrontal cortex.

Only a few studies have been done on how accurate fMRI is at identifying specific lies, though their figures range from 76% to 90% accuracy. (For more info, see Daniel Langleben’s paper Detection of Deception with fMRI: Are we there yet? Mr. Langleben owns the technology licensed by No Lie MRI.) Ed Vul of MIT’s Kanwisher Lab told Wired.com that it’s too easy to make fMRI data inaccurate, because a defendant who knows what he’s doing can game the procedure too easily.

Of course, the big challenge to the defense in this case will be establishing that fMRI lie detection is generally accepted within the relevant scientific community. As with any other novel scientific evidence, if the relevant community is defined narrowly enough, it can come in. The trick would be in determining how narrow the relevant scientific community is in this case. If it includes researchers like Mr. Vul, for example, the defense is going to have a hard time. Even Mr. Langelben, who owns the technology used here, is on record saying that not enough clinical testing has been done to establish how reliable it really is.

We predict that the evidence will not be admitted. Down the road, sure, this stuff will come in on both sides. But right now it’s too new. Courts just don’t go out on a limb for truly novel evidence like this.

And besides, they’re trying to admit it to prove the truth of the defendant’s own statement. The issue is not whether he was lying when he declared that he believed himself to be innocent, however. The issue is whether he committed the acts of which he is accused. Whether he thinks he did or not isn’t really the point. It might be relevant at the sentencing phase of a criminal trial, but not at the fact-finding phase here.

No More Google Mistrials: A Proposal for Courts to Adapt to Modern Life

Wednesday, March 18th, 2009

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“Google mistrials” are in the news again. Every few years, we hear about mistrials being declared because jurors were caught researching the facts online. It’s not a new phenomenon — there have always been jurors who felt the urge to find out for themselves what really happened — all that’s new is how easy the Internet makes it. And even Google mistrials have been happening for many years.

Jurors naturally want to investigate on their own. It’s normal. After all, the whole purpose of a jury is to arrive at an official version of the facts, jurors do take this job seriously, and they commonly feel hamstrung by rules of evidence that keep them from seeing the whole picture. Taking the initiative can be thought of as a means to achieving true justice. Such initiative is even the major plot device of that old classic “Twelve Angry Men,” commonly seen as a drama that epitomizes true justice.

The justice system, on the other hand, has evolved over the centuries to ensure justice in quite a different way. Instead of allowing trial juries to investigate the facts, the courts carefully limit the facts to which juries are exposed. Before being spoon-fed to the jurors, facts must first be sifted through rules of admissibility, to ensure that only relevant and reliable information is made available. Then both sides in the trial get to challenge, cross-examine and argue about that evidence. This testing by fire, even if intended to obfuscate rather than clarify the facts, is generally seen as serving the higher goal of a just result.

So unlike “Twelve Angry Men,” when a juror in real life goes out into the world beyond the courtroom, and finds evidence that was not presented at trial which could affect the outcome of the case, justice is deemed to have been frustrated. A mistrial is declared, and everyone has to do it over again. The judge, jury, court employees, lawyers, witnesses and parties will have wasted their time, effort and money.

But it used to take some effort to cause such mistrials, and so they were rare. Jurors may have WANTED to go out and do some research on their own, but few had the time and resources to match their inclination. Nowadays, however, everyone is a research specialist. In everyone’s pocket is a miniature Hitchhiker’s Guide to the Galaxy, a phone or PDA with full access to the Internet. Looking up individuals, events, photos, aerial images, detailed maps, weather, weapons, forensics, public records, and practically anything else is now fast, effortless and free.

There are no obstacles to such research, and so everyone does it. And they do it all the time. It’s not a here-and-there thing like visiting a library; it’s part of the habits of people’s daily lives. The simple fact is that it is something people do naturally and routinely throughout their day. Telling someone not to go online these days is as inane as telling them they can’t talk about their day with their spouses and best friends.

Beyond simple inanity, ensuring that jurors comply with a no-Googling rule is simply unworkable in real life. Access to the Internet is ubiquitous in modern life. It’s everywhere. Unless courts are willing to confiscate all wireless devices of any sort at the courthouse, and then sequester every jury at great expense to ensure that they don’t access the web after hours, then courts are simply not going to be able to prevent Googling from happening. Jurors are going to be instructed not to do it, they’re going to do it anyway in ever-increasing numbers, and so mistrials are going to happen in ever-increasing numbers.

It’s time for modern jurisprudence to catch up to modern reality. Independent juror research simply cannot be grounds for mistrial any more.

It’s not such a stretch, by the way. We already allow jurors to take into the jury room any common knowledge and common sense they already possess. In fact, we insist on it. All that would be required of the law would be a presumption that anything available on the net is common knowledge.

That’s a simple fix, and an intellectually honest one.

What would that mean? That would mean that lawyers would have to be a little more diligent in investigating their cases. They’re going to have to presume that anything on the Internet is common knowledge. So if that common knowledge is wrong, they’re first going to have to realize it’s out there, and then debunk it.

So what? That’s what any good lawyer does now, anyway. If there’s a common perception that happens to be a mis-perception, then effective counsel will do their best to educate the jury to at the very least minimize the effects of that misperception. We do this all the time, in all sorts of cases. Prosecutors try to nullify the perception that circumstantial evidence is somehow less reliable than direct evidence. Defense attorneys try to undo the perception that an eyewitness identification is as damning as it gets. There are tons of examples for every kind of case that goes to trial.

The risk, of course, is that by attempting to debunk an attitude, one may merely highlight it to a juror who wouldn’t have otherwise have thought it. That’s the same risk we take now. We try to minimize it during jury selection, if we can. And we judge the risks and take the course we judge to be best.

In short, the law needs to accommodate modern reality by treating data commonly available as if it people were commonly aware of it. The law may already do so, and the courts just haven’t gotten around to realizing it yet. It really may be nothing more than a simple matter of re-interpretation of a longstanding rule.

So no more Google mistrials, please. Efficiency would be improved, and justice would be served.

Sudan: Our Optimistic Prediction = Fail. Our Cynical One? Right On.

Monday, March 16th, 2009

 

Starting in November, we’ve predicted two alternative reactions that Sudan’s Omar al-Bashir could have if the ICC issued an arrest warrant. On the one hand, he could start acting all cooperative, and thereby appease a U.N. Security Council that wants any excuse to avoid ICC action here. On the other hand, Bashir could just terminate international aid to Darfur, kick out peacekeepers and aid workers, and then blame the resulting death and suffering on the West while he consolidates his local power.

It looks now like Bashir has gone with door number two. The BBC reports today that Bashir now says “he wants all international aid groups out of the country.” Speaking to a rally, Bashir stated that “within a year, we don’t want to see any foreign aid group dealing with a Sudanese citizen. If they want to bring relief, let them drop it at airports or seaports. Let [Sudan’s] national organizations deal with our citizens.”

Within the past week or so, Bashir has already expelled 13 large international organizations, claiming that they were spying for the ICC.

According to the Beeb, “the United Nations said the expulsions would leave millions at risk of a humanitarian crisis.”

So okay, lesson learned (re-learned, of course). Dictators don’t choose to go gently into that sweet good night of punishment at the hands of modern procedural justice. Go figure.

So then fine, but now what? Will the Security Council take this opportunity to announce a deferral of any prosecution, under Article 16 of the Rome Statute, in the stated interests of forestalling any humanitarian crisis? They could choose to be seen as pragmatic and wise, opting to sacrifice the individual prosecution of the dictator in order to save the lives of tens or hundreds of thousands. And of course, those P5 nations opposed to ICC action (China and Russia because Sudan is an important partner, and the U.S. because it doesn’t want the precedent of prosecuting a head of state) would have the out they’re looking for, all while appearing humane and acting for the best.

Or will they allow the ICC’s arrest warrant to continue, watch the foreign aid be expelled, watch Sudan’s warlord take control of any aid naively dropped off at the border, and stand on principle to bring the rule of law to failed states?

We’re going to go with the cynical prediction this time. Just a hunch.

Food Fraud Prosecutors Caught Selling Snake Oil

Friday, March 13th, 2009

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Judge Posner issued a scathing decision yesterday for the 7th Circuit, reversing a jury’s fraud conviction and directing an acquittal. Why? Because the only fraudulent misrepresentations were those of the prosecutor.

The decision is great, and we plan to use some of it in our own future arguments. Sadly, it is just the latest in a string of recent cases where federal prosecutors — uncharacteristically — have far overstepped the bounds. We hope it’s not becoming a trend.

In U.S. v. Farinella, the government accused Farinella of fraudulently misleading consumers by slapping a new label over the “best when purchased by” date. The Justice Department alleged that this altered the dates on which “the dressing would expire.”

But the Justice Department was itself misleading when it said so. The dressing had a very long shelf life indeed — in fact, it has no expiration date. There is no time after which one shouldn’t eat it. The “best when purchased by” date was merely a marketing ploy. “For all we know,” Posner wrote, “the date is determined less by a judgment about taste than about concern with turnover.” Nevertheless, the government consistently referred to the date as the “expiration date,” routinely misleading the jury and the court.

Posner made an outstanding observation during his discussion of the government’s expert testimony. They had called an FDA employee, whose testimony strongly implied that changing food labels requires FDA approval. But though that may be the expert’s understanding, it wasn’t actually a requirement.

For it “to be a lawful predicate of a criminal conviction,” Posner wrote, it would “have to be found in some statute or regulation, or at least in some written interpretive guideline or opinion, and not just in the oral testimony of an agency employee.”

He then gave us white-collar defense attorneys a wonderfully quotable ruling: “It is a denial of due process of law to convict a person of a crime because he violated some bureaucrat’s secret understanding of the law. The idea of secret laws is repugnant. People cannot comply with laws the existence of which is concealed.”

There was no evidence of misbranding, and so the defendant had to be acquitted. However, even if there had been evidence, the Circuit would have reversed and ordered a new trial, because the Justice Department’s misconduct was beyond the pale.

As already pointed out, the prosecution repeatedly misrepresented the facts, referring to the “best when purchased by” date as the “expiration date.” In her closing argument alone, the prosecutor substituted that phrase 14 times.

The prosecutor further misled the jury when she told them that the “best when purchased by” date “allows a manufacturer to trace the product if there is a consumer complaint, if there is illness, if there is a need to recall the product.” That’s not remotely true, and there was no public safety issue with what the defendant did.

She made several more arguments hinging on implied threats to public safety: “If what he did was business as usual in the food industry, I suggest we stop going to the store right now and start growing our own food. . . . In spite of all this talk about the quality of the dressing, I don’t see them opening an of these bottles and taking a whiff. . . . [The defendant was indifferent to] safety. . . . The harm caused by the fraud was to public confidence in the safety of the food supply.” She called the still perfectly fine bottles “truckfulls of nasty, expired salad dressing.” She said that after the “expiration date” the dressing was no longer “fresh,” so the defendant “had to convert the expired dressing into new, fresh product.”

During rebuttal arguments, the prosecutor said “Ladies and gentlemen, don’t let the defendant and his high-paid lawyer buy his way out of this.” Then she went on to say “Black and white is our system of justice, ladies and gentlemen. You have to earn justice; you can’t buy it.” The implication that the defendant might be trying to bribe his way to an acquittal should have resulted in a warning of mistrial, but only resulted in sustained objections.

The Justice Department repeated its misrepresentations in its brief, using the phrase “expiration date” and hinting at public safety concerns. But the trial prosecutor’s misconduct alone was sufficient for the Circuit to order a new trial, and the only reason they didn’t do so was because there was no evidence in the first place, resulting in a directed acquittal.

“That does not detract from the gravity of the prosecutor’s misconduct and the need for an appropriate sanction,” Posner was quick to point out, however. “The government’s appellate lawyer told us that the prosecutor’s superior would give her a talking-to. We are not impressed by the suggestion.”

Posner finished his opinion with a nice kicker: “Since we are directing an acquittal on all counts, the sentencing issues are academic and we do not address them, beyond expressing our surprise that the government would complain about the leniency of the sentence for a crime it had failed to prove.”

Ouch.

“Sexting” – Humiliating? How About Criminal?

Thursday, March 12th, 2009

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There has been a spate of news articles over the past week about a supposedly new teen trend called “sexting” — basically kids taking nude photos and sending them to each other’s cell phones and computers. The articles follow a Today Show interview with the mother of a girl who committed suicide last July after her photos started getting spread around. Most of the articles out there are of the “how do we protect our children from themselves” variety, but there is also a legal consideration. A lot of this activity could count as child porn, and could result in criminal prosecution.

Jesse Logan was a high school student in the Cincinnati area. Like plenty of teenage girls before her, she gave her boyfriend some nude photos. Unlike the Polaroids of previous generations, she sent them electronically, either by cell phone or by email.

Also unlike physical Polaroids, making copies of these photos would be free and easy. A potentially unlimited number could be sent off to others, just as she had sent them to her boyfriend. When they broke up, the ex-boyfriend sent copies to other high school girls. The photos spread around from cell phone to cell phone, and she started getting harassed at school. She became miserable, stopped going to school, and even went on a local TV station to tell her story.

Two months later, one of Jesse’s acquaintances committed suicide. She went to the funeral, then came home and hanged herself.

Hers is only the most tragic case making the news right now. But it happens all the time. There are reports that nearly half of all high school boys these days have seen nude photos of girls in their school. Some of those are spread by the girls’ boyfriends after a breakup, but most seem to have just been disseminated through normal teen chat.

If those ex-girlfriends were under 18 — and most of them probably were at the time, this being high school — then those photos are child porn. Distributing child porn, possessing it, and disseminating it to minors are all crimes that can get those high schoolers in serious trouble.

The consequences could be very severe. The ex-boyfriends and others who spread their photos could be charged with child porn, receive real jail sentences, and spend the rest of their lives as registered sex offenders.

Realistically, a teenage boy with a nude photo of his girlfriend isn’t likely to be charged with child porn. But someone who sends that photo to others, or posts it online, or otherwise spreads it around… that’s a whole ‘nother story.

It doesn’t even have to be intentional. Alan Grieco, a psychologist who treats Florida sex offenders, told Tampa Bay Online about a client who, when a young 20-year-old man, had dated a 17-year-old girl. He had a nude photo of her on his cell phone, which he did not share with anyone else. But after breaking up, his new girlfriend found the photo and sent it to the first girl’s parents. That young man was then charged with child pornography, and is going to spend the rest of his life living with that.

The kids who voluntarily send nude images of themselves aren’t thinking about how easy they will spread, how permanent such things are once they’re in the wide electronic world, and how much of an embarrassment they could be in the years ahead. That’s bad enough. But what’s worse is that the kids who receive, post and pass around these photos could be putting themselves in very hot water indeed.

The Chutzpah Defense: Should Defendants be Able to Appeal Their Way to an 8th Amendment Violation?

Wednesday, March 11th, 2009

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Few would deny that 32 years is a long time to spend in jail. It’s a long time to spend on death row, as well. But is delaying the execution — particularly when the delay is caused by the convict’s own appeals — cruel and unusual punishment violating the 8th Amendment?

This issue has sparked a fierce debate among the justices of the Supreme Court, three of whom put their positions in writing this week. The Court itself punted the issue, which was brought by William Lee Thompson, declining to hear his claim that 32 years on death row was cruel and unusual. But Justices John Paul Stevens, Stephen Breyer and Clarence Thomas took their disagreement out of the conference room and put it on paper.

Justice Stevens has been trying to get the Court to take on this issue since 1995, when he wrote a memorandum statement arguing that, although novel at the time, the proposition was “not without foundation.” Lackey v. Texas, 514 U.S. 1045 (1995). The state’s interest in retribution, he then mused, might be satisfied by the uncertainties a prisoner must suffer during a lengthy delay of execution (though why he felt that retribution was a proper purpose of punishment in a modern civilized society is a whole nother topic). Any deterrent purpose would be negligible after such a delay, he argued, and any penalty with little marginal return would essentially be gratuitous, and therefore cruel and unusual. Stevens also pointed out that other countries’ courts had found similar arguments to be persuasive.

In his statement this week, Stevens pointed out that the average execution happens nearly 13 years after sentencing, adding that “to my mind, this figure underscores the fundamental inhumanity and unworkability of the death penalty as it is administered in the United States.”

However, he went on to say that the delays are mostly the result of judicial process. “Judicial process takes time, but the error rate in capital cases illustrates its necessity. We are duty bound to [ensure] that every safeguard is observed when a defendant’s life is at stake.” He concluded that “our experience during the past three decades has demonstrated that delays in state-sponsored killings are inescapable, and that executing defendants after such delays is unacceptably cruel.”

We’re no fans of the death penalty, but Stevens’ argument is a bit too much of a non sequitur, even for us. His argument is essentially: A) Delay is necessary to ensure justice in capital cases, and B) Delay sucks, if you’re the one on death row, so therefore C) Delay is unconstitutionally cruel and unusual. Which is the opposite of A. It doesn’t follow.

Stevens doesn’t need it to follow, however, because his ulterior motive is to find the death penalty itself unconstitutional. He says as much in his conclusion (quoting a previous opinion of his, which itself echoed his argument in the 1995 statement).

Justice Breyer has been pushing this issue almost as long as Stevens has, joining the cause in 1999 when he opposed denial of cert. in two Florida cases, Foster v. Florida, 537 U.S. 990 and Knight v. Florida, 528 U.S. 990. His statement in this week’s case can be found here.

Like Stevens, Breyer clearly had an ulterior motive for wanting to grant cert. He also agrees that delay is necessary to ensure justice in capital cases, and the defendant caused most of the delay in his case with apparently meritless appeals.

However, critically important to Breyer is the fact that a portion of the delay was spent on a meritorious appeal. The trial judge didn’t allow some evidence at the sentencing hearing, but was compelled to allow it at a new hearing. The defendant got the same sentence of death.

Breyer’s argument is that the delay involved in the meritorious appeal was unconstitutionally cruel and unusual, because the appeal would not have happened but for the sentencing judge’s error, which is state action. The delay involved in the meritless appeals is a necessary safeguard of the criminal justice system, and is just fine.

Seriously, that’s his argument. Read it yourself. What Breyer really wanted was to undo the death sentence itself, which he felt wasn’t really deserved here.

So what about Justice Thomas? He took the other side, arguing the 32 years were spent in appellate litigation brought by the petitioner. He caused the very delay of which he now complains. He used a quote from Mike Luttig to make the point: “It makes a mockery of our system of justice . . . for a convicted murderer, who, through his own interminable efforts of delay . . . has secured the almost-indefinite postponement of his sentence, to then claim that the almost-indefinite postponement renders his sentence unconstitutional.”

Thomas felt that ulterior motives should not undercut the decisions of three separate juries, each of which held that the petitioner should be executed for kidnapping and horribly torturing a woman to death. The Constitution permitted the death penalty, and it was “the considered judgment of the people of Florida” that it was warranted here.

So all three justices seem to tacitly admit that the Supreme Court will take on a case, even if the arguments presented aren’t the right arguments, if it feels there is some other injustice that needs to be cured. Stevens and Breyer wanted to take on this case, because they felt the death penalty shouldn’t have been imposed — Stevens because he thinks it should never be imposed, and Breyer because he thinks the petitioner wasn’t as guilty as his co-defendant, who didn’t get the death penalty. Thomas didn’t see any injustice, so didn’t need to overlook the defendant’s chutzpah, though his dwelling on the merits of the sentence indicate that he might have done so in another case.

As of now, there is still no “Chutzpah Defense.” But don’t be surprised if some enterprising defense attorneys don’t craft some new versions of that argument, inspired by these three opinions.

Assigned Counsel are Not Government Actors? This is News?

Tuesday, March 10th, 2009

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The Supreme Court ruled today that defense attorneys assigned by the state are not government actors, merely because the government assigns and pays them. They are attorneys for the defendant, and their actions are actions of the defense, not the government.

This seems like a no-brainer. Every defense attorney knows that his obligations are to his client, regardless of who is paying the bill. But apparently the Vermont Supreme Court needed to be reminded of this fact by a 7-2 decision of the Supreme Court.

Michael Brillon was arrested in 2001, and had at least six different lawyers over the next three years, before finally being convicted after a jury trial and sentenced to 12-20 years. Before trial, Brillon moved to dismiss for speedy trial violations.

The trial court said the delay was caused by Brillon, and denied the motion. The Vermont Supreme Court reversed, saying that at least two of the three years should be charged against the state, because those delays were caused court-appointed defense attorneys. The remaining year, where delays were caused by retained counsel for the defense, was not chargeable against the state.

Writing for the majority in Vermont v. Brillon, Justice Ginsburg stated that the Vermont Supreme Court’s error was in thinking that assigned counsel are state actors in the criminal justice system. Assigned counsel, just like retained counsel, act on behalf of their clients, so delays they seek are ordinarily attributable to the defense.

The Vermont court had tried to assess whether the delay was to be blamed more on the government or on the defense. Because assigned counsel were paid by the government, Vermont felt that they were government actors, so their delay should be charged to the government. But the Supreme Court was obliged to point out that an attorney is the defendant’s agent, regardless of whether the attorney is privately retained or publicly assigned.

This is such a fundamental point, it is amazing that it got this far. Justice Ginsburg took the time to explain that Vermont’s error was such a fundamental misapplication of Barker v. Wingo that the Supreme Court had to step in to correct it.

Justice Ginsburg did leave open the possibility for public defender delays to be chargeable against the state, but only when such delays are caused by a “systemic breakdown” in the public defender system, some sort of institutional problem actually attributable to the government. That wasn’t the case here.

Justices Breyer wrote a very interesting dissent, in which Justice Stevens joined, highlighting some of the unspoken realities of how the Supreme Court works. They did not disagree with the ruling itself, but rather believed that certiorari had been improvidently granted. The issues turned out to be not as clearly defined as originally presented, and there were ambiguities in the Vermont Supreme Court’s decision, so that it did not necessarily misapply Barker v. Wingo unless one wanted to read it that way. Justice Breyer basically said the Court accepted and decided this case because the majority justices wanted to, so very badly.