Archive for January, 2010

Supreme Court Smackdown

Monday, January 25th, 2010

300 supreme court

“Why is this case here, except as an opportunity to upset Melendez-Diaz?”

So wondered Justice Scalia during oral argument a couple weeks back in the case of Briscoe v. Virginia. For some background, see our previous post on this case here. Briefly, the Supreme Court held last year in Melendez-Diaz v. Massachusetts that, in a drug case, the prosecution cannot prove the existence of a controlled substance by merely introducing the lab report — the chemist has to testify, or else the Confrontation Clause is violated. There was a huge outcry from prosecutors’ offices across the country. It would be too much of a burden to get chemists to testify at every drug trial. There was a concerted effort to get around this new ruling, or better yet to get the Supremes to reverse themselves.

So in Briscoe, Virginia tried to get around the rule by saying the prosecution only needs to introduce a lab report, and if the defense wants to confront the chemist then the defense can subpoena the chemist as a witness.

More than half the state attorneys-general filed an amicus brief, arguing that the expense and administrative burden of getting chemists to testify at trial would just be (more…)

A New Emergency Exception for New York?

Wednesday, January 20th, 2010

 

The Fourth Amendment says the police can’t go into your home or other private place without a warrant. Over the years, we’ve come up with a lot of exceptions to the warrant requirement. So many, in fact, that getting a warrant has become the exception, and the exceptions have become the norm.

That’s because privacy isn’t the only interest society has here. The various exceptions to the warrant requirement allow the police to go in when other important interests outweigh the privacy interest.

One common exception to the warrant requirement is the Emergency exception. Under the emergency rule, the police can go in when there is good reason to believe there’s someone inside who needs help right away — either they’re seriously hurt, or they’re in danger.

In New York, that rule was formalized by the Mitchell case in 1976. The Mitchell rule has two objective conditions, and one subjective condition. If all three are met, then the police would be allowed to enter under the emergency rule. The objective conditions require that a reasonably prudent officer would first have thought there was an emergency, and second would have had probable cause to believe the emergency was inside the place to be searched. The subjective condition was that the police had to actually be going inside to help someone — the emergency couldn’t be a pretext for some other ulterior motive such as looking for evidence.

For about 15 years, now, the U.S. Supreme Court has been rejecting subjective rules like that. So far as federal law is concerned, the Supremes don’t care if the police had some ulterior motive or pretext. So long as there was a legitimate basis for the police conduct, they don’t care what the police were actually thinking.

So in 2006, in the Brigham City case, the Supreme Court specifically addressed the three-part Mitchell rule, and said New York’s subjective condition is not required under federal law. All federal law requires is that the police had an objectively reasonable basis to believe that there was an emergency, and probable cause to believe that the emergency was inside the place to be searched.

That’s only the federal rule, however. Federal law only provides a minimum of protections, a base line of individual rights. The states can’t give less protection, but they can certainly grant greater protections. So New York remains free to adopt the Brigham City rule, or keep the Mitchell rule, or come up with a new one. (New York could even get rid of the emergency exception altogether, though that would be a silly result — nobody wants the police to be forced to watch helpless from the sidewalk while someone is being beaten to death on the other side of a window.)

But to date, New York’s courts have neither adopted nor rejected (more…)

The Criminal Justice System is Not a Counterterrorism Tool

Thursday, January 7th, 2010

terrorist lineup

Yesterday, we were talking with a colleague about whether we’d ever take a terrorism client. We frankly don’t have any more qualms about defending that type of case than about any other type. But the conversation turned to whether such cases ought to be brought in the courts in the first place. And we just don’t think terrorism should be fought in the courts.

In the years before 9/11, the U.S. dealt with terrorism as a criminal matter. Conceptually, it was no different from any other multiple homicide: the bad thing would happen, law enforcement would try to find out whodunit, and if the suspect was still alive and could be arrested then he’d get prosecuted.

This didn’t work so well. Some people eventually got punished, but the system didn’t stop or deter any future attacks. The criminal justice system can’t do that, after all. It’s purely an after-the-fact thing. Its job is to punish people after the crime is already committed. The courts can’t act proactively to prevent crimes that haven’t been committed yet — punishing people before they’ve done anything would be outrageous. No, proactive national defense is the job of the armed forces.

More than that, our criminal justice system is flatly contrary to the goals of counterterrorism. Preventing terrorist acts requires (more…)

No, Virginia, You Can’t Get Around the Confrontation Clause by Shifting the Burden of Proof

Monday, January 4th, 2010

On June 25 last year, the Supreme Court held in Melendez-Diaz v. Massachusetts that in a drug case the prosecution can’t simply use a sworn lab report to prove the existence of a controlled substance. If the chemist doesn’t testify, it violates the Confrontation Clause. (See our previous post about it here.)

Four days later, on June 29, the Court granted cert. in Briscoe v. Virginia, to decide whether the states can get around this requirement if they permit the defendant to call the lab analyst as a defense witness. Oral arguments are scheduled for next Monday, and we can’t wait to hear how the Commonwealth of Virginia tries to make its case.

It seems to us that there is an obvious burden-shifting problem here. The state, and only the state, has the burden of proving every element of the crime. Since the Winship case in 1970, this has been a due process requirement of the Constitution. Unless he asserts an affirmative defense, the defendant has no burden to prove a thing.

So the prosecution has to prove an element. It needs a forensic test to prove it. It needs the testimony of the analyst to introduce the results of that test. The defense does not have a burden to prove anything, one way or the other, about the test.

But Virginia wants to be able to prove its case using only the lab report, and get around the Confrontation Clause by saying the defense is allowed to call the analyst if they want to confront him.

First, who cares whether the state allows the defense to call the analyst or not? Last time we checked, the defense could call any witness they chose, by subpoena if need be. The defense always has the opportunity to put the analyst on the stand as a defense witness. This “permission” doesn’t actually give the defense permission to do anything it couldn’t already do. All it does is imply wrongly that the defense couldn’t have done so otherwise.

Second, the state cannot impose a burden of proof on the defense like this. Virginia’s scheme essentially precludes the defense from challenging the state’s evidence during the state’s case. It forces the defense to act affirmatively and put on a defense case in order to challenge the state’s evidence. That’s a big due process violation.

Third, the state does not get around the Confrontation Clause by shifting the burden to the defendant to call those witnesses it wishes to confront. In a murder case, it would absurd to let the prosecution introduce an eyewitness’s written account of what happened, and no more, so long as the defendant himself could have called the eyewitness if he wanted to. That’s indistinguishable from what Virginia wants to do.

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Lots of prosecutors’ offices are hoping that the Supremes will side with Virginia on this one. Particularly in the more amateurish offices, there is a feeling that the Melendez-Diaz decision imposes too great a cost on the criminal justice system, and imposes unworkable inefficiencies, by requiring chemists to take time off from their busy jobs to testify at trial. An amicus brief filed by half the nation’s attorneys general makes these arguments.

But just look here at New York City, the busiest criminal courts and crime lab in the world. Lab reports are used in the grand jury, where there is no confrontation right, but the chemists themselves must testify at trial. Somehow, this requirement has not bankrupted the city. Getting the chemist to show up is just one more minor hassle that prosecutors have to deal with, no more challenging than getting cops to show up. The requirement is so minor that nobody really thinks about it.

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Still, Melendez-Diaz was a 5-4 decision. And one of the five, Justice Souter, has been replaced by former prosecutor Justice Sotomayor. So people are thinking that she’s going to be more pro-prosecution here, and help the Court either reverse or severely limit that decision.

We don’t think so. We’d remind Court observers that Sotomayor came out of the Manhattan DA’s office, not one of the “amateur hour” offices. Her own personal experience is that requiring the chemist to testify at trial is really no big deal.

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So we’re looking forward to the oral arguments next week. If Scalia gives as good as he did in last June’s decision, and if we’re right about Sotomayor, then Virginia’s in for a spirited beatdown.