The Criminal Lawyer

The Supreme Court ruled this morning that a confession obtained in violation of the 6th Amendment right to counsel is still admissible on cross-examination to impeach a defendant who testified that someone else did it.

Writing for the 7-2 majority in Kansas v. Ventris today was the always-entertaining Justice Scalia. He summed up the facts more pithily that we could, and we’re keen to see if we can figure out to insert block quotes, so here’s Scalia’s summary:

In the early hours of January 7, 2004, after two days of no sleep and some drug use, Rhonda Theel and respondent Donnie Ray Ventris reached an ill-conceived agreement to confront Ernest Hicks in his home. The couple testified that the aim of the visit was simply to investigate rumors that Hicks abused children, but the couple may have been inspired by the potential for financial gain: Theel had recently learned that Hicks carried large amounts of cash.

The encounter did not end well. One or both of the pair shot and killed Hicks with shots from a .38-caliber revolver, and the companions drove off in Hicks’s truck with approximately $300 of his money and his cell phone. On receiving a tip from two friends of the couple who had helped transport them to Hicks’s home, officers arrested Ventris and Theel and charged them with various crimes, chief among them murder and aggravated robbery. The State dropped the murder charge against Theel in exchange for her guilty plea to the robbery charge and her testimony identifying Ventris as the shooter.

Prior to trial, officers planted an informant in Ventris’s holding cell, instructing him to “keep [his] ear open and listen” for incriminating statements. App. 146. According to the informant, in response to his statement that Ventris appeared to have “something more serious weighing in on his mind,” Ventris divulged that “[h]e’d shot this man in his head and in his chest” and taken “his keys, his wallet, about $350.00, and . . . a vehicle.” Id., at 154, 150.

At trial, Ventris took the stand and blamed the robbery and shooting entirely on Theel. The government sought to call the informant, to testify to Ventris’s prior contradictory statement; Ventris objected. The State conceded that there was “probably a violation” of Ventris’s Sixth Amendment right to counsel but nonetheless argued that the statement was admissible for impeachment purposes because the violation “doesn’t give the Defendant . . . a license to just get on the stand and lie.” Id., at 143. The trial court agreed and allowed the informant’s testimony, but instructed the jury to “consider with caution” all testimony given in exchange for benefits from the State. Id., at 30. The jury ultimately acquitted Ventris of felony murder and misdemeanor theft but returned a guilty verdict on the aggravated burglary and aggravated robbery counts.

The Kansas Supreme Court reversed the conviction, holding that “[o]nce a criminal prosecution has commenced, the defendant’s statements made to an undercover informant surreptitiously acting as an agent for theState are not admissible at trial for any reason, including the impeachment of the defendant’s testimony.”

In his decision this morning, Scalia pointed out that the exclusionary rule is applied differently, depending on the rights that were violated. The Fifth Amendment’s protection from compelled self-incrimination is enforced with an absolute exclusion — the overriding of an individual’s free will and extraction of a confession is so heinous, that the confession cannot be used either in the prosecution’s case-in-chief, nor in rebuttal, nor for impeachment. The exclusionary rule there is used to prevent violations of the right. On the other hand, the exclusionary rule is not automatic in the Fourth Amendment search-and-seizure context, nor is it absolute, but can instead be used to rebut and impeach the defendant’s testimony.

With respect to the Sixth Amendment, when there is a pretrial interrogation of a defendant — after the defendant has been formally charged — the defendant has the right to have a lawyer present. Apart from that, it only guarantees a right to counsel at trial. The reason why there’s a right to counsel at the interrogation stage is because interrogation is a critical stage of the prosecution.

Let’s stop there for a second to point out that this is an odd presumption. It’s odd in that the only interest at stake is the defendant’s interest in beating the rap. We’re not talking about coerced confessions here. The reason for this rule cannot be that we want a witness to the confession, a defense lawyer who can confirm whether it was voluntary or not. Because the attorney can’t testify, and he isn’t likely to be believed in the first place, because he’s interested in protecting his client.

The effect is to stop confessions that otherwise would have been freely made, by requiring counsel whose real purpose is to tell the defendant to shut up. The obvious problem is that, if a lawyer was present, then that would make the police acts even more offensive, violating or infringing on attorney-client confidentiality, which would be even more violative of the Sixth Amendment’s right to counsel. Frankly, when the Supreme Court carved out this rule in Massiah, Brewer, etc. they were fighting a non-existent Sixth Amendment problem while ignoring the actual underlying Fourth Amendment problem.

But we digress.

Scalia, too, has problems with Massiah, calling it “equivocal on what precisely constituted the violation. It quoted various authorities indicating that the violation occurred at the moment of the postindictment interrogation because such questioning ‘contravenes the basic dictates of fairness in the conduct of criminal causes.’ But the opinion later suggested that the violation occurred only when the improperly obtained evidence was ‘used against [the defendant] at his trial.’”

Nevertheless, Scalia had no problem deciding that “the Massiah right is a right to be free of uncounseled interrogation, and is infringed at the time of the interrogation.”

So far, so good. Everyone now agrees that there was in fact a Sixth Amendment violation here. The issue now is whether the fruits of that violation must be excluded absolutely, as with a Fifth Amendment violation, or only kept out of the case on direct, as with the Fourth.

In this situation, Scalia argued, the purpose of exclusion would not be prevention of the violation, as it is with the Fifth Amendment. Instead, the purpose would be to remedy a violation that has already occurred, as with the Fourth.

When that is the purpose, there is strong precedent that such excluded evidence is allowed for impeachment. The defendant’s interests are outweighed by the need to prevent perjury, and by the need to ensure the integrity of the trial process. Although the government cannot make an affirmative use of evidence unlawfully obtained, that doesn’t mean the defendant can shield himself against contradiction of his untruths.

Therefore, once a defendant has testified contrary to his excluded statement, the excluded statement is admissible on cross or in rebuttal. “Denying the prosecution the use of ‘the traditional truth-testing devices of the adversary process’ is a high price to pay for vindication of the right to counsel at the prior stage.”

If the rule were any different, Scalia added, if the statements were absolutely excluded, there would be no extra deterrent effect. The odds that any given defendant will actually testify at trial are very small. The odds that he would then testify differently — knowing that the statement would be admissible for impeachment — are even smaller. So letting this come in for impeachment is not going to cause any cops to play games, and get excludable statements in the hopes of using them for impeachment later.

18 U. S. C. §924(c)(1)(A) makes it a federal crime to have a gun on you while committing certain violent or drug-related crimes. There’s a mandatory 5-year minimum sentence just for carrying the gun. If you brandish the gun, it goes up to 7 years. If the gun goes off, it goes up to 10 years.

That’s what happened to Christopher Michael Dean. He was robbing a bank, and had a gun in his hand. He probably had his finger on the trigger like an idiot, because when he reached over a teller to grab money, the gun went off. Nobody got hurt, and it was clearly unintentional. Still, the gun went off, and he got the 10 year minimum for it.

In today’s Supreme Court decision in Dean v. United States, the Court was asked to find that the enhanced 10-year minimum requires some mens rea. Some intent or mental state demonstrating culpability. In a 7-2 decision, however, the Court found that Congress did not impose any such requirement. The majority ruled that this is a crime of strict liability, and so it doesn’t matter whether the defendant meant it to happen or not.

The Court didn’t have a lot of room here. Congress didn’t put anything about mens rea in the statute. It just says you automatically get 10 years “if the firearm is discharged.” It doesn’t say “negligently,” or “knowingly” or “intentionally” or anything like that. It’s written in the passive voice, and nothing else in the statute suggests that Congress meant there to be a mental-state element of this crime.

Dean argued that the law has a progression of ever-harsher penalties. And usually in the law, penalties are increased because of a more culpable mental state. So even though Congress didn’t say it in so many words, they must have intended this 10-year minimum to apply to intentional shootings, as opposed to accidental discharges.

But of course mental state is not the only element that increases culpability. Extra facts can do so as well. Intentionally hitting someone and bruising them is one thing, and intentionally hitting them and killing them is another. Here, bringing a gun to a bank robbery is a bad thing, because there’s a chance it is going to be used, and someone could get hurt. Taking the gun out and waving it around during the heist only increases the chances that someone could get hurt. And even a random shot increases the odds even more. So it makes sense that Congress increased the penalties based on the increased risk to others.

Writing for the majority, Roberts acknowledged that “it is unusual to impose criminal punishment for the consequences of purely accidental conduct.” However, strict liability crimes for unintentional conduct certainly do exist. Statutory rape is the most commonly-cited example. The law doesn’t care whether a man knew his sexual partner was underage, or even if he had every reason to believe that she wasn’t. His mental state does not enter into it, and he goes to jail for a crime he never intended, and never realized he was committing. The law takes the act so seriously that it is deemed indefensible, and so it doesn’t care whether it was committed by mistake. Although they are uncommon, there are plenty of strict liability crimes.

The reason why strict liability crimes are uncommon is alluded to in Dean’s case. When we punish a crime, what we’re really punishing is the offender’s mental state. If someone accidentally trips and stumbles into you, society doesn’t want to punish him. What for? There’s nothing to deter, nothing to retaliate against, nothing to rehabilitate — there was no wrongdoing. But if someone had a duty to be careful with his car, but wasn’t, and his negligence hurt you, then he’s going to be punished a little bit. And if he drove dangerously, with reckless disregard of the danger to others, then he’s going to be punished even more. And if he intentionally ran you over, backed up, and did it again, then he’s going to get the most punishment. Even if the injuries are the same in every case, the more wrongful the offender’s mental state, the more culpable he is, and the more punishment he’s going to get. And if there was no mental state, then there’s really nothing to punish.

The law increases punishment for increased culpability. Increased mens rea certainly means increased culpability.

But that’s not the only factor. In addition to the mens rea element, you have the offender’s actions to consider, as well as the harm that resulted. Increasingly risky actions, with the same mens rea, are increasingly culpable. And increasingly harmful results, with no change in mens rea or actus reus, are also increasingly culpable. Dean’s argument didn’t really seem to grasp this concept.

In his dissent, Justice Stevens made the same mistake that Dean did. Stevens argued that, because of the escalating sentences, Congress must have “intended to provide escalating sentences for increasingly culpable conduct,” and therefore “the discharge provision… applies only to intentional discharges.”

Time for Stevens to bone up on his logic. That syllogism is the same as saying “All men have noses. That person has a nose. Therefore, that person is a man.” It ignores the fact that women also have noses. Here, Stevens ignores the fact that mental state is not the only thing that enhances culpability.

Stevens also would have applied the common-law presumption of mens rea — that if something has been criminalized, there is presumed to be some mental-state element of the crime. Legislatures do often leave out the mens rea element from time to time, and the courts fill it in for them. But that’s only when the statute didn’t otherwise provide a basis for the enhanced culpability. Here, however, Congress did provide a basis for enhanced culpability, in the increased risk to others posed by the actions, regardless of whether those actions were intentional.

Breyer also dissented, based on the Rule of Lenity. He felt that the word “discharge” should be interpreted as meaning “firing,” which implies active use of the weapon, and therefore implies some kind of intent. But he conceded that the majority opinion had equally strong arguments for reading this as a strict liability crime. Given these competing interpretations, the Rule of Lenity would have the Court err on the side of the defendant.

However, just because a contrary position can be articulated, that does not mean that interpretation is necessarily ambiguous. The Rule of Lenity is only applicable when the statute is so ambiguous that it didn’t give fair warning of what could happen to you if you violated it. Here, according to the majority, there was no such ambiguity. The statute simply didn’t contain a mens rea element, and it didn’t imply one, and that fact is not grievously uncertain, and so the Rule of Lenity doesn’t apply.

So don’t rob banks. But if you do, don’t bring a gun along. But if you do, don’t wave it around. But if you do, keep your finger off the trigger. Because if it goes off by accident, you’re in big trouble.

The Supreme Court this morning exemplified exactly what’s wrong with the death penalty in this country. In a clear effort to avoid a decision that would impose a death sentence, the Court made a nonsense ruling so it could extend the course of appeals — appeals that have already run for three decades. The Court further delayed an outcome, continuing the stress and injustice of uncertainty to the defendant, the victims, and the criminal justice system.

One Saturday afternoon in 1980, Gary Cone robbed a Memphis jewelry store of about $112,000 worth of trinkets. He led a police officer on a high-speed chase through town and into a residential neighborhood. Abandoning his car, he ran off on foot. He shot a police officer who pursued him, and a citizen who tried to stop him. Re-thinking his abandonment of the getaway car, he tried his hand at carjacking, tried to shoot the driver, but was out of ammo.

Cone ran and hid all that day and into the next morning. He then tried to force his way into an old lady’s apartment at gunpoint, but she refused to let him in. The highly-intelligent Vietnam War veteran was foiled again. But later that Sunday afternoon, he broke into the home of an elderly couple, Shipley and Cleopatra Todd, aged 93 and 79, and brutally beat them to death.

After hiding the bodies, ransacking their home, and shaving off his beard, he made his way to Florida. There, he robbed a drugstore, got arrested, and admitted to killing the Todds and shooting the police officer.

In 1982, he was convicted of the murders, after unsuccessfully arguing that he had been on drugs and suffered from post-traumatic stress, and thus lacked the necessary mens rea. He didn’t really present a lot of evidence to back that up. The jury found him guilty, found the requisite aggravating factors, and sentenced him to death.

In yet another bleak example of modern American capital punishment, Cone spent the next 27 years filing appeal after appeal, up to the Supreme Court and back again.

This morning, the Supreme Court ruled on his federal habeas claim. Cone was arguing that the government violated his Brady rights, by withholding evidence material to his mental state.

On direct review in state court, the Tennessee Supreme Court had affirmed the conviction and the death sentence. Cone then filed a petition claiming various violations, including Brady violations. While the petition was pending, he got to see the prosecutor’s case file, and amended his petition to add more detailed Brady claims. He claimed that his thin evidence at trial would have been bolstered by this stuff, had he seen it at the time.

The reviewing court denied the petition, on the grounds that the Brady claims had already been considered and denied. Cone then sought a writ of habeas corpus, seeking relief for the alleged Brady violation. The Sixth Circuit said no to the Brady claim, because the state decision was based on grounds that weren’t applicable in federal court.

Appeals then went back and forth on other matters. In 2001, the Circuit granted relief for ineffective assistance of counsel, but the Supreme Court reversed that in 2002. In 2004, the Circuit granted relief for the use of an unconstitutional aggravating factor, but the Supreme Court reversed that one also.

Back in the Sixth Circuit in 2007 on remand, Cone once again raised the Brady claim. The Circuit again said no, that the claim was procedurally barred, because Tennessee had relied on independent state grounds in its determination of the Brady claim. And in any event, the prosecutor’s files weren’t Brady material in the first place, because nothing in them would have “overcome the overwhelming evidence of Cone’s guilt” and “the persuasive testimony that Cone was not under the influence of drugs.”

On cert to the Supreme Court this time around, Cone argued that the prosecutor’s file contained witness statements and police reports that would have corroborated his insanity defense during the guilt phase, and would have mitigated the aggravating factors during the sentencing phase. He argued that the Tennessee court’s decision did not rest on grounds that precluded federal review, contrary to the Circuit’s finding.

In its decision this morning, written for the majority by Justice Stevens, the Supreme Court ruled in Cone v. Bell that Cone was right — the Tennessee court’s decision did not rest on grounds that precluded federal review. Nevertheless, Cone was still wrong, because the prosecution’s files were not Brady material — the withheld documents simply were not material to any defense based on his mental state.

If Stevens had stopped there, this would have been a unanimous decision.

Instead, however, Stevens screwed up. “While we agree that the withheld documents were not material to the question whether Cone committed murder with the requisite mental state,” he wrote, “the lower courts failed to adequately consider whether that same evidence was material to Cone’s sentence.”

Say what? It clearly wasn’t material to the issue of guilt, but the appellate courts were too hasty in saying it was not material for sentencing? Stevens is basically saying, the files weren’t Brady, because they weren’t material to the issue of his mental state. But on the other hand, they might have been material to the issue of his mental state, so we’re remanding for a do-over.

So, in all these years of considering this very issue on appeal, the Circuit got it right when it decided that the files simply weren’t material. But in all these years of considering this very issue, the Circuit acted too hastily in deciding that the files weren’t material.

That simply doesn’t make sense, and in his dissent (joined by Scalia), Thomas makes that exact point. Alito felt the same way, and dissented to that extent, but concurred with the rest of the decision.

Chief Justice Roberts felt the same way, but wasn’t moved strongly enough to dissent, so he merely wrote a concurring opinion voicing his concerns. Instead, “this is what we are left with,” he wrote: “a fact-specific determination, under the established legal standard, viewing the unique facts in favor of the defendant, that the Brady claim fails with respect to guilt, but might have merit as to sentencing. In light of all this, I see no reason to quarrel with the Court’s ruling on the Brady claim.

That’s just weak. He and the rest of the majority clearly punted the issue. There is no distinguishing difference between the guilt phase or the sentencing phase, when determining whether something was Brady or not. Either it’s material or it isn’t. The issue in both was whether Cone’s mental state was impaired, and the courts seem to agree that the files were immaterial to that issue.

It’s clear what’s really going on, of course: the majority didn’t want to suck it up and just deny the claim. To do so would be to impose a death sentence, and the Stevens majority doesn’t want to do that unless there’s no way out for them. But they found a way out here. Not a particularly meaningful one, but it was all they needed. So they weaseled out of it, and kicked it back to the Sixth Circuit to do their dirty work for them.

We predict that the Circuit will simply make the same finding again on remand, and spill some more ink to spell out that its finding applies to both the sentencing phase as well as the guilt phase. Then today’s majority will be able to feel a little better about themselves when they affirm, and sentence Cone to death.

But delaying this foregone conclusion is unjust. It’s exactly what’s wrong with capital punishment in this country. There is no deterrent effect, because there is no predictability as to whether capital punishment will be carried out, and any such punishment is too far off in the dim and distant future to be meaningful. There is clearly no rehabilitation or attempt to rehabilitate, as the alternative is just life in prison. There is no just retribution, as society does not gain anything from punishment that neither certain nor contemporaneous.

Until the courts can work out a fair way of resolving death-penalty appeals justly and swiftly, the death penalty will continue to be an inhumane sentence in this country. Inhumane not only to defendants, but to the families of their victims, and to the community at large.

The Supreme Court took on five Fourth Amendment cases this term. Four have been decided, and the fifth was argued on Tuesday. Although it may be premature to do so before the last decision comes down, we think it’s safe to draw some conclusions about the Court’s jurisprudence here, and predict what it might mean for the course of criminal justice.

The Fourth Amendment protects citizens against unreasonable searches and seizures. Like most other protections in the Bill of Rights, the whole point is to ensure that the State does not use its awesome power to override the necessary liberties and free will of individuals in a just society. The Bill of Rights prohibits the government from limiting ideas and their expression, from preventing individuals from arming themselves, from forcing soldiers into people’s homes, from extracting confessions by means that override the individual’s free will, from conducting secret “Star Chamber”-like trials or otherwise deny fair trials to defendants, from imposing indecent punishment, etc. If you sum up all the injustices that individuals face under medieval or tyrannical rule, the Bill of Rights pretty much says the U.S. government shall not do such things.

“Unreasonable” search & seizure basically means that, as a baseline, police ordinarily need to get a warrant first, by proving to a judge that they are more likely than not to find what they’re looking for, and that they’ll find it in the place they plan to look. There are exceptions to the warrant requirement, of course. Most searches don’t take place pursuant to a warrant, but under one of the exceptions.

If a person consents to a search, then no warrant is needed. Neither is a warrant needed if there is good reason to believe that evidence is going to be lost, or someone’s going to get hurt, if the cops take the time to get a warrant. There are various other exceptions.

The devil is in the details, of course. So the more exceptions you carve out from the general rule, the more room for error you create, and the more gray areas of confusion can pop up. Over the past few decades, various Fourth Amendment exceptions have indeed created confusion, gray areas, and absurdities.

The Supreme Court has taken the opportunity this term to attack those confusions, gray areas and absurdities head on.

On Tuesday, the Court ruled in Arizona v. Gant with respect to vehicle searches. (We reported on this here.) Back in the 60s, a warrant exception was carved out for searches of an individual and his “wingspan” — the area in his immediate reach — pursuant to a lawful arrest. The purpose was to ensure the safety of the officers and to preserve evidence. So long as the arrest was lawful, the search was lawful. Fast-forward to just after Reagan’s first swearing-in, when the Court expanded the search-incident-to-lawful-arrest to include the search of the passenger compartment of a car in which the arrestee had been riding.

Almost immediately after that ruling, everyone started to get the idea that cops could search the passenger area even after everyone was out of the car. The “wingspan” concept was lost, and instead a bright-line rule arose that, if the cops arrested someone who had been inside a car, then that car could be searched, period. Even after that person had long ago left the scene.

Some policy-makers like bright-line rules, because they require no thought. Individual circumstances need not be considered. An action that might not make sense, upon casual reflection, is still taken, because that’s the rule. If you don’t trust people to be able to weigh circumstances reasonably, then you give them bright-line rules.

And so it was that the police in Gant found themselves searching his car. Gant had already been arrested, handcuffed, and locked in a police cruiser, so the interior of his car was certainly no longer within his reach. So there was no reason to believe that he could destroy any evidence in the car or use something in the car to hurt the police. And he had been arrested for driving with a suspended license, not the kind of crime involving physical evidence, so there was no reason to believe that any evidence of that crime would be found in the car. In fact, the cops admitted on the stand that the only reason they search the car after the arrest was “because the law says we can do it.”

That was absurd. It’s an absurdity that just sort of happened, too. Nowhere in the 1981 Belton case did the Court lay out a bright-line rule. But that rule became the common interpretation, and has been the common interpretation for a quarter of a century.

On Tuesday, however, the Court finally stepped in to undo the absurdity. In a narrowly split 5-4 decision, the Court ruled that the police are not allowed to search a car simply because they made an arrest. The bright-line rule was thrown out the window. Interestingly, the case made for strange bedfellows. Contrary to popular expectation, Scalia and Thomas joined the pro-defendant side, and Breyer joined the pro-government minority. Scalia, in fact, felt that the majority opinion didn’t go far enough to limit the government’s power to search a car after an arrest.

The dissent essentially boiled down to a version of stare decisis — the common interpretation has been around for so long, that it has become the law of the land, and should be treated as such. That’s an interesting, but flawed, rationale. Stare decisis has to do with longstanding judicial precedent, not with some sort of jurisprudential adverse possession. Common practice does not equal legal precedent. Just because nobody has bothered to claim till now that the common interpretation was wrong, that doesn’t mean that nobody ought to be able to claim that now.

Anyway, the rule now is that the bright-line rule is no more. Cops can only search the passenger compartment if they have reason to believe — on a case-by-case basis — that the arrestee can still gain access to the car or that the car contains evidence of the crime for which he had been arrested. They can’t go looking just because the guy was arrested. They can’t go looking for evidence of other crimes. (They can still, however, either get a warrant, or impound the car and do an inventory search.)

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Argued the same day as Gant was decided was Safford Unified School District v. Redding. This also has to do with bright-line rules, in a way.

For context, the oral arguments were made almost to the day on the 10th anniversary of the Columbine shootings. Ten years ago, a couple of juvenile delinquents killed 12 people in a high school, the worst such violence that the U.S. has ever seen.

Due to the resulting hysteria and misinformation about the events, schools nationwide began passing bright-line “zero tolerance” rules out of fear that similar crimes might happen to them. Although it is now known that the killings were totally random, there arose a misconception that the killers sought out specific categories of victims. This led to panicked overreaction whenever a kid was found to have identified people in the school that they didn’t like. In fact, the killers wanted to kill everyone, setting (faulty) bombs to go off in the cafeteria (the fact that nobody every mentions the totally obvious similarities to the plot of the 1988 movie “Heathers” is beyond us).

Zero tolerance policies resulted in the expulsion of even little kids for bringing anything remotely resembling a weapon to school. Even when doing so was clearly absurd, as with water pistols, plastic army men, miniature toys, eating utensils, and the like.

Zero tolerance policies went after anything that might even slightly imply to the most paranoid hysteric an imaginary threat of unlikely harm to students or teachers. This included little girls hugging (because touching without permission can sometimes be a bad thing, all touching must be bad!). It included bringing a cake knife to school to cut a cake one had also brought to school.

And drugs are bad, by definition. So zero-tolerance included bringing any drugs to school. Passing out Tylenol can get kids expelled. It’s serious!

These bright-line zero-tolerance rules are imposed because school administrators are afraid. They’re afraid of their students. And they’re afraid of having to act rationally on a case-by-case basis. So they just over-react to everything, and establish bright-line rules so they don’t have to think.

And so we have Safford Unified School District v. Redding.

In Safford, we have a middle school (also in Arizona), where school authorities caught a 13-year-old girl with (gasp!) prescription-strength ibuprofen. This was a zero-tolerance school, and even though there is no way that ibuprofen counts as a dangerous drug, it was a bright-line prohibited medicine. So this girl was in serious trouble.

The girl (gasp!) pointed the finger at someone else. She said that another girl, Redding, had given her the medicine.

School officials have the authority to preserve the health and safety of their students. Most would say they even have the responsibility to do so. So it is not suprising that the school investigated the culprit’s claims.

Without taking the time to get a warrant, and acting only on the say-so of the girl they actually caught with the medicine, school officials searched Redding’s backpack, and found nothing. Then they took Redding to the nurse’s office, and searched her outer clothing. Nothing. Then they had her stretch out her bra and panties, exposing her breasts and genitals. Nothing. They shook out her underclothes, and her body was inspected by the nurse and another school official. Nothing. Then they put her in the principal’s office, and left her there alone for a few hours, without calling her mother or anyone else. No drugs of any kind were found during all this searching, and nobody else was strip searched.

Redding sued, claiming that her Fourth Amendment rights had been violated when she was subjected to this strip search.

The school district seeks a bright-line rule that permits strip searches whenever a school has reason to suspect that a student has prohibited contraband on them. At the same time, and without appearing to notice the inherent hypocrisy, they argue that the courts should not second-guess the judgement of school officials. Here, they had a reason to suspect Redding, and that should be enough to let them strip search her.

Now, if the Court is inclined to lay down a bright-line rule at all here, that surely is not going to be the rule they impose. There is no way the Court is going to let school officials make an unreviewable decision as to whether there’s reason to conduct a given strip search or not.

Instead, they’d probably impose a bright-line rule requiring first that there be sufficient credible evidence — first, that this student has drugs in the first place; and second, that the drugs are concealed in the private regions of the student’s body.

But then, in addition to an evidentiary requirement, they’d probably have to include a proportionality requirement as well. The Court is unlikely to permit extraordinarily invasive searches for contraband that poses no real threat. Strip searches for plastic toys would be within the realm of lawful possibility, otherwise.

But if your bright-line rule requires weighing evidence on a case-by-case basis, and weighing proportionality on a case-by-case basis, then it really isn’t a bright line at all, is it?

No, we’re going to go out on a limb here and predict that the Court will reject any bright-line rule, and instead impose a balancing test. A good rule will require that strip searches are only allowed when there is credible evidence that the student is concealing contraband in or on her private body parts. Not just the say-so of another student trying to direct blame onto someone else.

And a good rule will require that a strip search be proportionate to the danger. It’s more reasonable if the kid’s believed to have explosives strapped to his body (a la Christian Slater in “Heathers”), or a weapon in his underwear, or decks of heroin in his nether regions. It’s not so reasonable if the kid’s only believed to possess a toy, or harmless medicine, or even a list of kids he doesn’t like.

A good rule will be fact-specific, and will require schools to actually exercise good judgment. A rule that lets them just act without thinking would be contrary to the direction this Court seems to be taking with its Fourth Amendment cases.

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That leads us to the third Arizona case in this term’s Fourth Amendment decisions. On January 26, Justice Ginsburg wrote a unanimous decision for the Court in Arizona v. Johnson (which we wrote about here).

In Johnson, the Court clarified that a police officer can do a pat-down search, feeling someone’s outer clothing for weapons, if the officer has reason to believe that the person is armed and poses a threat to safety. The police don’t lose that ability to protect their own safety when other circumstances change.

Ginsburg pointed out that this really shouldn’t have been a point of confusion. A long line of cases, starting with Terry v. Ohio, clearly say cops can pat someone down for weapons if they have reason to believe the person’s armed and dangerous. And yet there obviously was confusion, evidenced by the Johnson case itself.

In Johnson, a female officer with gang experience was involved in a traffic stop. Before the stop, she had no reason to believe the passengers had committed any crimes. But during the stop, she saw things that led her to believe that one of the passengers was a gang member. She talked to him about things unrelated to the reason for the traffic stop, and some of the things he said led her to believe that he was armed and dangerous. So she asked him to step out of the car, to talk about things out of earshot of the other suspected gang members, then patted down his clothing and found a gun in his waistband. The passenger was later convicted of possessing the gun.

The Arizona Court of Appeals ruled that the officer lost her authority to pat him down once she started talking to him about matters unrelated to the traffic infraction. Even though she had reason to believe he was armed and posed a threat to her, the fact that she had talked to him about other things erased her ability to pat him down for her own protection.

The unanimous Supreme Court cleared that right up. The passenger was already seized, and not free to leave. The fact that he was being asked questions about other things didn’t change that. And the officer did have reason to suspect that he was armed and dangerous, and the topic of conversation didn’t change that.

Now in one respect, this is a bright-line rule. And as we pointed out in our previous post, we have problems with this bright-line rule, insofar as it has to do with whether a person involved in a traffic stop is free to leave. Under the Court’s rule, the answer is simply no, until the stop is over or the police let him go.

But the meat of the decision is not a bright-line rule. It is yet another case-by-case analysis: did the officer have reason to believe there was a weapon and that she could be in danger? The ruling simplifies the analysis by removing other considerations from the equation, as being irrlevant. The bright-line issue of whether someone is seized or not really has nothing to do with the core issue. And the Arizona court’s issue of whether the conversation has switched topics is beyond irrelevant.

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The fourth case this term was Herring v. United States, which had to do with the exclusionary rule. (We wrote about this decision here.)

In Herring, the Court ruled that the exclusionary rule doesn’t apply when a policeman acts on flawed information from law enforcement in the next county. Herring, a character who’d had several run-ins with local law enforcement in Alabama, went to get his truck out of impound. The officer ran a check to see if any warrants were outstanding for him. There was a hit for an outstanding warrant in the next county. Herring was arrested on that warrant, and drugs were found. It turned out that the neighboring county’s records were erroneous, and there wasn’t any warrant.

Writing for the narrow 5-4 majority, Chief Justice Roberts ruled that the error was too separate from the search and seizure of the drugs. The officer who conducted the search didn’t have anything to do with the error, and it would be pointless to attribute it to him. Thinking of the exclusionary rule as a rule of deterrence, Roberts said it should only apply when excluding seized evidence would deter wrongful conduct. So the police conduct would have to be sufficiently deliberate that it could be deterred. And the conduct would have to be sufficiently wrongful to be worth the loss of evidence.

It’s easy to see where the majority was going here. It’s common for people to think of the exclusionary rule as balancing, on the one hand, our concern for protecting individuals against unlawful government intrusions, against our concern against “letting people off on a technicality” on the other hand. So here, the arresting officer wasn’t being negligent. He acted totally reasonably, relying on a criminal justice database. Excluding this evidence wouldn’t deter future reliance on criminal justice databases, and we actually don’t want that kind of reliance to be deterred in the first place.

But that common way of thinking really is a misconception. The exclusionary rule is not a rule of deterrence. And thinking of it that way can lead to confusion.

The exclusionary rule is the typical remedy for police violation of Fourth Amendment rights, by suppression of the evidence that would not have been gathered but for the violation. This protects the justice system, by ensuring that the maximum lawfully-gathered evidence is available, while ensuring that defendants aren’t prosecuted with unlawfully-gathered evidence.

Police officers and departments are not punished for violations, because that would be deterrent — it would create an incentive to avoid borderline situations where evidence could have been obtained lawfully.

Rather than do that, the exclusionary rule lets officers go right up to the line of what they’re allowed to do, and only takes away what they shouldn’t have been allowed to get, the evidence they got by crossing the line. The get to keep the other evidence.

The exclusionary rule is not an individual right, but is rather a remedy that has been crafted over generations of thoughtful jurisprudence. It simultaneously maximizes protection of the individual’s rights, and society’s interest in law enforcement. It balances two powerful and competing interests, and it does the job elegantly. As such, it is a beautiful rule, but one that is nevertheless criticized — both by law-and-order types and by defendant-rights types — when its role is misunderstood. Unfortunately, it is misunderstood all the time, and the Supreme Court itself did so here.

- – -

The last case is Pearson v. Callahan, decided on January 21. It involved Utah police officers who conducted a warrantless search of a home. There were no exigent circumstances. Instead, they thought their conduct was lawful under the “consent once removed” doctrine.

This is a legal doctrine that had been gaining traction out west (and in New Jersey) since the early 1980s. The way it worked here was, they flipped a suspect into an informant. Then they sent the informant to his drug spot, the defendant’s home. The informant was invited in, saw drugs, and went back to tell the cops what they’d seen. The defendant had consented to allow the informant into his home, and that consent was deemed transferred to the cops, as “consent once removed,” and so the defendant was deemend to have consented to the police entry into his home. Under that doctrine, he’d consented, so they didn’t need a warrant.

The cops were sued, and the issue was whether they had qualified immunity here. The Court’s unanimous decision, written by Justice Alito, mostly dealt with a procedural issue raised sua sponte. But in the end they briefly mentioned the underlying issue of whether the police acted lawfully here.

The test for qualified immunity was whether the unlawfulness of the officers’ action was clearly established at the time of their actions. If it was clearly unlawful, then they did not have qualified immunity.

As it happened, however, there was a line of cases that instead established that this kind of “consent once removed” search was fine back in 2002, at least out west. So the police were entitled to qualified immunity.

Disappointingly, the Court did not deal with the issue of whether this kind of attenuated consent is actually proper now in 2009. So there’s really no meat to this decision, which is why we saved it for last.

- – -

All in all, it looks like the Court is shying away from any judicial activism here. Rather than creating broader interpretations of individual rights, or establishing greater police powers, the Court is focusing on clarifying existing rights and powers. And instead of expanding the existing rules, the Court is simply trying to rein in misconceptions and absurdities.

Part of that trend seems to be the relaxing of bright-line rules. Bright lines are great when you don’t want people to have discretion, when you don’t trust them to think, or they’re not trained to understand the issues. You get some efficiency that way. But in real life, facts don’t always fit within those lines, and an unthinking application of bright-line rules will sometimes result in injustice. This Court seems to be moving away from the seeming mass efficiencies, in favor of individual justice.

Well, we like that very much.

Although the nation of Sierra Leone has had an extradition treaty with the United States in effect since 1935, the African country has never complied with a single request for extradition. Until yesterday, that is.

Its government never complied with such requests, one might argue, because there really was no government to speak of. The country descended into failed-statehood shortly after becoming independent in 1961, with an almost totally non-functioning government. It was one of those unfortunate countries where, if you had to call someone in charge, nobody was going to pick up (embassy types would joke that it was because the officials were hiding under their desks from all the bullets flying around). During Liberia’s horrifying civil war in the 1990s, its warlord Charles Taylor took advantage of Sierra Leone’s instability to found a rebel group (funded with Sierra Leone diamonds, and manned with conscripted children) to launch a civil war in Sierra Leone. The corrupt government, which had no real resources due to a resultingly nonexistent economy, couldn’t do much to fight back. A brutal civil war ensued that raged throughout the 90s. A large Nigerian-led UN force finally intervened and restored peace, finally disarming the rebels in 2004.

Following the successful UN intervention, Sierra Leone has started to adopt the rule of law. Leaders of both sides of the war were subjected to UN war crimes tribunals. Democratic elections were held in 2007, and when no presidential candidate won a majority, rather than devolve into violence, the country simply held a runoff election. Important laws protecting public order have since been passed, and enforced.

So yesterday’s extradition is an important step in Sierra Leone’s process of joining the successful nations of the world, by complying with its treaty obligations under international law.

The case began in July of last year, when a cargo plane made an emergency landing at Lungui. The plane was found to contain military weapons and ammunition, as well as more than 600 kilos of cocaine.

Sierra Leone charged 15 people with importing cocaine, pursuant to the National Drug Ace of 2008, and related charges. The new criminal justice procedures were followed, resulting in a trial that ended on Tuesday. After the lengthy trial, Justice Mark Brown sentenced most of the defendants to 5-year jail terms and fines of $1 million.

Three of the defendants, Geraldo Quintana-Perez, Harvey Steven Perez and Alex Romero, were then immediately handed over to FBI agents at the Lungui airport, pursuant to the extradition treaty. All three were wanted in the United States on separate drug-related charges.

Quintana-Perez and Perez are to be arraigned today in the Southern District of New York. The SDNY’s acting U.S Attorney, Lev Dassin, remarked in a press release that “this is the first transfer of defendants from Sierra Leone. We hope that the transfer of these defendants to American custody marks the beginning of a strong partnership between the United States and Sierra Leone in combating the international drug trade, which poses a serious threat to both countries.” DEA acting Administrator Michele Leonhart added that “history is made today.”

The Minister of Information and Communication for Sierra Leone, Ibrahim ben Kargbo, stated that the prison sentences handed down by the Sierra Leone court will be respected by the United States, and that the jail terms for these three defendants will be served in U.S. prisons.

This truly is an important step in Sierra Leone’s journey towards modern statehood, with its government being beholden not only to its own laws, but also to its obligations under international law. The rule of law is perhaps the single most important requirement for a country to succeed, for its economy to prosper, and for its citizens to be protected. Without the certainty that the government will abide by the rules, that agreements will be enforced, and that rights will be protected, a country cannot thrive. Some other countries would do well to watch Sierra Leone’s rapid progress.

In a stunning 5-4 decision, the Supreme Court today reversed its longstanding bright-line rule which had permitted warrantless car searches after an arrest, even when there was no concern for officer safety or the preservation of evidence. The case is Arizona v Gant.

Writing for the majority in this important decision, Justice Stevens held that the police may only search the passenger compartment of a vehicle, pursuant to the arrest of a recent occupant, if it is reasonable to believe that the arrested person might access the car while it’s being searched, or that the car contains evidence of the crime for which that person was arrested.

Interestingly, the votes were contrary to common stereotype. The majority, which limited police powers, included the two most right-wing justices in the popular mind, Scalia and Thomas. The minority, which would have expanded police powers, included two fairly liberal justices, Kennedy and Breyer.

Rodney Gant was arrested for driving with a suspended license. After he was arrested, the police handcuffed him and locked him in the back of their cruiser. Once he was secured, the police then searched his car and found a jacket on the back seat. In a pocket of that jacket, they found some cocaine.

The trial judge in Arizona denied the motion to suppress, saying that the police are allowed to conduct such a warrantless search of a car incident to arrest. The police had seen Gant driving without a license, so the search was incident to a lawful arrest, and that was enough for the trial court. The Supreme Court, after all, had ruled in New York v. Belton, 453 U.S. 454 (1981) that a warrantless vehicle search incident to lawful arrest was proper. At the suppression hearing, one of the officers explained that the search was done “because the law says we can do it.”

This is actually the common interpretation of Belton. It is widely regarded (and reviled) as a bright-line rule. Stevens pointed out in today’s opinion that it “has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.” He added that “the chorus that has called for us to revisit Belton includes courts, scholars, and Members of this Court who have questioned that decision’s clarity and its fidelity to Fourth Amendment principles.”

The bright line has seemed only brighter in the past decade, however, especially after Whren v. United States, 517 U.S. 806 (1996), which held that the police could seize evidence in plain view within a car even after an arrest for a mere traffic violation, regardless of whether there was an ulterior motive in making the traffic stop. So the trial court’s ruling was not a surprise.

Despite the common interpretation, Gant appealed, arguing that Belton shouldn’t be read so broadly as that. It shouldn’t permit a search of the car when the arrestee poses no present threat to the officers. And it shouldn’t permit a search of the car when there is no way it could contain evidence of the crime for which he’d been arrested. There was simply no exigency that satisfied the policy underlying the Belton rule.

The Arizona Supreme Court agreed, and reversed. The Arizona Supreme Court found that Belton only had to do with how much searching could go on during a vehicle search incident to arrest, and did not have to do with whether such a search was permissible once the scene was secure. The Supreme Court of the United States had explained its underlying policy back in Chimel v. California, 395 U.S. 752 (1969), saying that the reasons justifying warrantless search incident to arrest is for the safety of the officers, and for the preservation of destructible evidence. In this case, those justifications did not exist at the time of the search.

The State of Arizona filed cert, arguing that the bright-line rule of Belton permitted the search, and that the common interpretation is the right one.

Writing for the majority, Stevens said that the bright-line rule, though the common interpretation, is the wrong interpretation. He saw that this came about because of an inappropriate reliance on Brennan’s dissent in Belton. Brennan had felt that the Belton rule created a legal fiction that the interior of a car is always within the immediate control of an arrestee, even when that person is no longer near the car at the time of the search.

Stevens acknowledged that this reading leads to absurd outcomes, including searched “incident to arrest” after the arrestee had long since left the scene.

To avoid such absurdity, the Court rejected the bright-line interpretation, and held that the underlying Chimel policy only authorizes vehicle searches incident to arrest “when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.”

The Court added a second condition when such searches are permissible, derived not from Chimel but from Scalia’s concurring opinion in Thornton v. United States, 541 U.S. 615, 632 (2004). (Yet another example of a concurring or dissenting opinion later becoming law of the land.)

This second condition is when, based on the individual circumstances, it would be reasonable to believe there is evidence relevant to the particular crime for which the suspect was arrested.

The bright-line rule has clearly been demolished, and replaced with a case-by-case analysis of the facts.

Now bright-line rules aren’t necessarily a bad thing, in and of themselves. There is a tradeoff between the necessity to account for the vagaries of real life, and the necessity for an easily-understood rule that police can follow. Both considerations are necessary for the protection of individual liberties. If the line is too bright, then law enforcement can ignore common sense and violate rights just because they can. But if the rule is too convoluted, to take into account all the vagaries of real life, then law enforcement won’t understand it, and risks violating rights by accident (or on purpose).

Stevens came up with a rule here that we think is easy enough to understand. The police can conduct a warrantless vehicle search incident to arrest if:
(1) the arrestee can still reach into the passenger compartment, or
(2) there’s reason to believe that the car contains evidence relevant to the crime he was arrested for. That’s not going to cause any confusion. Police officers and trial judges won’t have a hard time applying it.

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There has been a movement in American jurisprudence away from formalism and bright lines, toward balancing. Instead of emphasizing bright-line rules requiring warrants, or dispensing with the need, the courts have been leaning more towards whatever is reasonable under the particular circumstances. A judicial, backward-looking approach, rather than a legislative one.

This ruling clearly fits that trend.

Well, except for Scalia’s concurring opinion. This ruling is in large part a result of his Thornton concurrence, but his focus is still a legislative, forward-looking approach, at least with respect to the process of judicial interpretation. His first sentence begins: “to determine what is an ‘unreasonable’ search within the meaning of the Fourth Amendment, we look first to the historical practices the Framers sought to preserve…”

We find this concurrence to be almost as good a read as his dissents. He lays plain the absurdities of the bright-line rule, only hinted at by the majority opinion. He does acknowledge that the Founders weren’t thinking of this stuff at all. And he tears the dissent of fellow conservative Alito to shreds. But we’ll let you read it all for yourself.

For now, suffice it to say that a major case was decided today, and the ruling is a good one for defendants and law enforcement both.

2009 New York Drug Sentencing Guide

What with all the drug law reforms happening in New York, we thought we’d put together a quick-and-easy guide to what they mean. Click here to view it in PDF form.

We used to do this all the time back when we were prosecuting cases with Special Narcotics. New York laws are so (unnecessarily) byzantine that a single chart really became necessary to figure out what they mean. We were often gratified to see nth-generation photocopies of our drug-law charts on various judges’ benches, and they were certainly popular in the office.

Standard warnings apply, of course: this is only a guide, and is not meant to be a substitute for legal research. And like everything else on this blog, it neither provides legal advice nor implies or creates an attorney-client relationship.

There’s probably some really juicy legal stories out there today, but we haven’t bothered to look yet. Instead, we’re spending our free time preparing for our upcoming CLE webcast at 11 a.m. Eastern this Friday at West LegalEd Center.

This will be the second in our “Hope for Hopeless Cases” series. We’ll be talking about ways to defend cases where your client’s on tape. Title III stuff, body wires and consent recordings. We’ll discuss weaknesses to look for and exploit in litigation, and give you some tools for cross examination and argument at trial. 1.5 hours, accredited in most states.

We admit it: we like to skip to the Scalia dissent.

Not because we necessarily agree with his philosophy of jurisprudence. But because it’s a good bet to be an entertaining read. Whether he’s dissenting from an expansive activist or a fellow limited-role jurist, he’s good for a bit of snark while mercilessly pointing out flaws and internal inconsistencies in the other fellow’s opinion.

So when we saw that Alito, and not Scalia, wrote the dissent in this morning’s Corley v. United States decision on the exclusion of statements, we sighed a little and took in the majority opinion first.

Well, we learned our lesson. Alito can give good dissent.

At issue is 18 U.S.C. § 3501. The statute was passed by Congress back in the 60s, in an attempt to undo some of the aggressive jurisprudence of the Warren Court. Particularly, Congress was trying to nullify the Court’s perceived expansion of the Exclusionary Rule with respect to statements. Miranda made statements inadmissible if suspects weren’t advised of their rights before custodial interrogation, and McNabb and Mallory excluded confessions during extended detention prior to arraignment. §3501(a) tried to nullify Miranda by saying that, notwithstanding any warnings, if the statement was voluntary, then it was admissible. §3501(c) similarly said that custodial confessions weren’t automatically inadmissible because of delay, if they were voluntary. Congress flatly said that voluntary statements were going to be admissible.

Now, all this shows is that Congress didn’t understand Miranda or the McNabb-Mallory rule. At heart behind both rules is the concept of voluntariness. If someone voluntarily inculpated themselves, then the Court has never had a problem with admitting that statement into evidence. The only thing that the Court has ever had a problem with — no matter who was on the bench — is involuntary statements being used against people.

Seriously, the single policy that explains all of the Supreme Court’s jurisprudence on the exclusion of statement evidence is this: “We won’t allow the government to convict somebody by overriding that person’s free will.”

So if the defendant was forced to incriminate himself out of his own mouth, then we won’t let that in. We won’t let the government beat confessions out of suspects, and this is all of a piece.

By the same token, we have no problem with taking blood or DNA samples without the suspect’s permission, because we’re not forcing him to convict himself. We’re just taking already-existing physical evidence, not forcing the suspect to create evidence to be used against him.

Hence the rule of Miranda and its progeny: If a reasonable person wouldn’t feel free to leave, and he’s being quizzed by the government, then incriminating response is by definition involuntary. The only way the government can cure that is to make sure the suspect knew his rights against self-incrimination, and knowingly waived those rights.

And hence the rule of McNabb-Mallory: The longer you’re being held by the government without being informed of the charges against you, the less likely anything you say will be voluntary. At some point, your statement is going to be by definition involuntary, unless the government has taken some affirmative action to ensure it really was voluntary.

Given this, §3501 is really a dead letter. Oh, there have been those who argue that its effect is what Congress intended, the nullification of the case law (see, e.g., U.S. v. Dickerson, 166 F.3d 667 (4th Cir. 1999)). But all §3501 says is that, if a statement was really voluntary, then it is admissible. And that is precisely what the case law also says.

So we come to today’s case, Corley v. U.S. The decision was 5-4, split right down the (jurisprudentially) liberal/conservative line. Souter wrote for the majority, joined by Stevens, Kennedy, Ginsburg and Breyer. Alito fired off the dissent, joined by Roberts, Scalia and Thomas.

And Souter — whom we like immensely — messed it up. Of all Justices, he was the one we expected to really get it, and lay out the real policy and uphold the majesty and wisdom of the law. Instead, he made a hash of it.

All he had to do is say, “yes, §3501 means what it says. But it does not do what Congress meant. The plain language of the statute does not affect our case law in the slightest.” We are willing to bet money that Scalia would have joined the majority if he had said that. And he might have taken the others with him for a Roberts-pleasing unanimous decision.

But instead, Souter said §3501 meant what it said as to Miranda, but it did not mean what it said as to McNabb-Mallory. His internally-inconsistent, self-contradictory interpretation required 18 pages of justification. At the end, he concluded that Congress didn’t mean to nullify McNabb-Mallory while trying to nullify Miranda, and so a Mirandized confession is still excludable if made during an extensive pre-presentment delay.

Souter’s reasoning was unnecessarily convoluted, and required a patchwork of equally risible arguments to fill in the obvious gaps. In dissent, Alito seems to gleefully dissect each one in turn. You just know he was grinning like a fool while writing (or directing) some of these passages. Oh sure, he tries for a veneer of objectivity with phrases like “the Court cites no authority for a canon of interpretation that favors a ‘negative implication’ of this sort over clear and express statutory language.” But that can’t conceal the snark within. Although Scalia might have had more fun with the point that “although we normally presume that Congress means in a statute what it says there, the Court today concludes that §3501(a) does not mean what it says,” it’s obvious that Alito was enjoying himself too.

Interestingly, the dissent does not disagree with the majority’s result, but only with its analysis. We really do think that if Souter had thought it through, he could have had a unanimous opinion clearing up this misunderstood line of cases for posterity.

That’s okay, we just did it for you.

The DOJ got an indictment this week against a Hitachi executive, in the government’s ongoing prosecution of alleged price-fixing in the LCD monitor industry.

We first blogged on this back on November 13th, when Sharp, LG Display and Chunghwa all pled guilty to price fixing, agreeing to pay $585 million in fines. Since then, Chungwha executives also pled guilty during February.

After the Chungwha executive pleas, Hitachi itself agreed in March to plead guilty and pay $31 million in fines.

Breaking from the pattern, however, rather than a Hitachi executive subsequently pleading guilty, the feds went ahead and indicted him.

According to a DOJ press release, Tuesday’s indictment charges a Japanese national, Sakae Someya, who was an executive at Hitachi Displays Ltd. Mr. Someya is accused of taking part in a larger global conspiracy to fix the prices of LCD panels sold to Dell.

Mr. Someya is accused of agreeing to charge set prices for the screens, sharing sales information to ensure everyone was complying with the agreed prices, and trying to keep the arrangement secret. These are Sherman Act charges, with a max of 10 years in prison plus a max fine of the greater of $1 million, double the gain, or double the loss to victims.

We wonder how much of the allegedly criminal conduct is simply normal business practice in Japanese culture. After all, the keiretsu distribution system used by Japanese industry looks very much like price fixing to Western eyes.

It certainly looks to us as though the DOJ’s Antitrust Division is busting through decades of resistance to offshore enforcement of U.S. antitrust rules. Whether it is proper to impose U.S. laws on a very foreign culture… that’s another question entirely. What do you think?

We try not to report here on matters that everyone else in the world is already talking about. That’s why we’ve said nowt on Bernie Madoff and other headline-grabbing stories. For the same reason, we decided yesterday not to mention the DOJ’s request to dismiss the charges in its prosecution of former Alaska Sen. Ted Stevens — everyone else was already reporting it. And we’ve already discussed the DOJ’s misconduct at length here and here.

But we wanted to point out a big point that the media seem to be missing. Most reports see this as a vindication of former Sen. Stevens, and a sign that prosecutorial misconduct will not be tolerated by the DOJ. In fact, however, the DOJ’s action means anything but that.

Stevens was convicted last October after a jury trial in D.C., during which the government withheld important Brady material — the judge said the prosecutors did so intentionally, and an FBI agent later confirmed that it was intentional. In addition, the prosecutors had a witness who, when they found out his testimony could clear Stevens of any guilt, they sent home to Alaska to conceal him from the defense. There were also inappropriate dealings between FBI agents and the government’s star witness, including an apparent sexual relationship.

The prosecutors continued to screw up, failing to turn over documents to the defense as ordered by the judge after all this came out. Understandably, the prosecutors were held in contempt, and taken off the case.

The case had gone from a trumpeted victory for the DOJ, to a squalid embarrassment.

So now, yesterday, the DOJ filed a motion to have all the charges against Sen. Stevens dismissed. They’re holding it out as a heroic act, that they’re doing the just and proper thing, that AG Holder is sending a message to prosecutors at the DOJ that further misconduct will not be tolerated.

We call shenanigans.

This dismissal of the charges is nothing more than an attempt to sweep the whole nefarious affair under the rug. The case goes away, so the problem goes away. There will be no further need for the scrupulous investigation of what went wrong at Justice. There will be no need to hold costly and embarrassing internal reviews. There will be no need for further media scrutiny.

The DOJ should not be permitted to escape whipping, by its own unilateral decision to drop a case. That’s not good enough.

This prosecution of this case was bizarre from the get-go. It was rushed to indictment hastily, mere days before the primaries in an important election (in violation of DOJ rules prohibiting indictments that could affect the outcome of an election, by the way). The prosecutors intentionally withheld evidence that seems to show the Senator didn’t commit the crime he was accused of. They violated court orders. They tried to hide a key witness from the defense. And ironically, these were prosecutors in the Public Integrity unit, of all things.

Now they want to make it all go away. Here’s hoping that Congress, the courts and the media see through this little ploy, and keep on investigating just what the heck is going on in the DOJ these days.

In an unusually mixed decision for the consensus-driven Roberts Court, the Supreme Court today ruled that federal public defenders can represent death-penalty clients at state clemency hearings. The more liberal justices said federal defenders could do so, but only if the state hearings followed a federal proceeding. Justice Thomas went further, saying that the law as written does not impose such a restriction, and in fact federal defenders would be allowed in any state capital case. Chief Justice Roberts agreed with the majority, but only insofar as the subsequent state proceedings are extra-judicial. Only Justices Scalia and Alito felt that federal defenders shouldn’t be allowed at state proceedings, period.

To get the result they wanted, the majority clearly made hash of the relevant statute, interpreting parts one way but other parts the opposite way, and then adding new interpretations to undo the absurdities that could have then resulted. Roberts allowed himself to justify the same outcome on a fine-point quibble. Only Thomas, Scalia and Alito had truly intellectually honest positions, but they didn’t fit the policy which the Court sought to advance. Once again, it was a case of making the law fit the Justices’ policy wishes — an undercurrent that often explains appellate decisionmaking.

At issue here was 18 U.S.C. § 3599, which provides for appointed counsel in federal proceedings. These lawyers are paid for out of the federal budget, when a client cannot afford a private attorney, and usually only handle matters in federal court. State court matters are typically handled by lawyers appointed and paid for by the state. Among other things, § 3599 sets forth what kind of matters a federally appointed lawyer can handle.

In this case, Harbison v. Bell, Edward Harbison was sentenced to death back in 1983 (yes, 26 years ago!) for beating a 62-year-old woman’s head to a pulp with a vase, after she surprised him while he was burgling her house.

Skipping over years of appellate back-and-forth, we come to a 2005 habeas petition in federal court. The Federal Defender Services of Eastern Tennessee were appointed to represent Harbison during this habeas proceeding. The petition was ultimately denied.

That having failed, Harbison tried for a clemency hearing in Tennessee state court. But he couldn’t get appointed counsel for such a hearing. The Tennessee Supreme Court had held that state law did not allow state-appointed lawyers in clemency hearings.

So Harbison’s federal defender filed a motion, asking that she be allowed to include the state clemency proceeding as part of her federally-compensated representation.

It wasn’t a huge stretch to ask for this, as §3599 permits federal defenders to represent their clients at “proceedings for executive or other clemency as may be available.” But Tennessee is in the 6th Circuit, which had previously construed §3599 as only applying to federal proceedings. So the district court denied the motion, and the 6th Circuit affirmed.

There being a split in the circuits on this issue — the 5th, 6th and 11th saying no federal assistance at the state level, but the 8th and 10th saying it’s okay — it was no surprise that the Supreme Court granted cert. Oral arguments were held in January.

The Court’s majority opinion is fairly straightforward: the plain language of §3599 doesn’t say anything limiting its scope to federal proceedings. In fact, its reference to “or other clemency” has to mean state proceedings, because federal clemency is strictly executive.

You can’t go out and get a federal defender for a state clemency hearing, however, unless you already had that federal defender to start with. In this case, the federal defender was on the case for the habeas proceeding, and the clemency one came afterward, so it was okay. But if the order had been reversed, the Court wouldn’t have permitted it.

Justice Stevens wrote the majority decision, and got the other four more liberal Justices to go along with the whole thing. Stevens was a little muddled, though, as his reading of the statute was dramatically different from clause to clause, and thus found that parts of it only apply to federal capital defendants.

Chief Justice Roberts agreed with Stevens’ result, but not with his reasoning. Roberts agreed that the federal defenders ought to be permitted at subsequent state clemency hearings. But he did not think that the plain language of §3599 said so. Just because the federal statute didn’t come out and say it was limited to federal cases, that doesn’t mean that’s not what Congress intended. Roberts felt (and Harbison conceded) that “it is highly unlikely that Congress intended federal habeas petitioners to keep their federal counsel during subsequent state judicial proceedings.”

Roberts astutely noted, however, that §3599 does not open the door to subsequent judicial proceedings. That would be a problem, because post-habeas judicial proceedings are by definition new matters, and §3599 only mentions “subsequent stages” of the federal matter. Clemency hearings, however, are non-judicial requests for mercy from the governor or a panel. We would expect this distinction to be raised for sure in some future case.

Justice Thomas was true to form, refusing to look outside the words Congress used to seek its intent, as “our task is to apply the text, not to improve upon it,” even if that produces “very bad policy.” He therefore felt the §3599 necessarily included state clemency proceedings, because the statute applied to people challenging either state or federal convictions, and state clemency is the only clemency available for state convictions.

In fact, Thomas went beyond the majority’s reading. The majority (and Roberts) assumed that parts of §3599 must be limited to federal proceedings, at least in some respects. But under Thomas-style interpretation it must be read to provide federal counsel “to indigent defendants in every criminal action in which a defendant is charged with a crime which may be punishable by death.” (Emphasis his.)

Justices Scalia and Alito were the only holdouts, finding that Congress was only talking about federal proceedings. After pointing out the obvious befuddlement of Stevens’ argument (as one would expect Scalia to do), they pointed out that “Section 3599 was enacted as part of a bill that created a new federal capital offense, and it is perfectly reasonable to assume that a federal statute, providing federally funded counsel, applies in federal proceedings only, even where the statute contains no such express limitation.” (Emphasis Scalia’s.)

As to the “or other clemency” on which the majority hung its hat, Scalia pointed out that the very congressional history which the majority felt was important “defeats the inference the Court wishes to draw.” The phrase “or other clemency” clearly did not imply or contemplate state proceedings, but was simply and unquestionably superfluous.