The police need a warrant to search your home.  Except when they don’t.  The warrant requirement of the Fourth Amendment is there to protect your privacy, and sorry, but sometimes your privacy isn’t the most important thing at the moment.

One exception to the warrant requirement is the Emergency Exception.  In a nutshell, it says the police are allowed to go into your home without a warrant when there is good reason to believe that someone inside is seriously hurt, or in danger, and needs their assistance right away.

Different states define the rule in different ways.  In New York, the rule was set in 1976 in the Mitchell case.  Mitchell has two objective conditions, and one subjective condition.  If all three are met, then the police are allowed to go in without a warrant.

Objectively, the circumstances have to be such that a reasonably prudent officer would have thought there was an emergency at the time.  Objectively, the officers on the scene had to have probable cause to believe that there was an emergency inside the house.

Subjectively, the officers had to actually be going inside to help.  They couldn’t be using the emergency as a pretext to really look for drugs, for example.

So far, so good.  Sort of.

One problem is that there is no requirement here that the police actually believe there is an emergency.  There is no subjective requirement that the police on the scene be aware of the circumstances that would lead a reasonable person to think there was an emergency.  There is no subjective requirement that the police on the scene actually think there’s an emergency.

That’s not a huge problem under the Mitchell rule, because the no-pretext prong sort of implies that the police need to subjectively believe there’s an emergency.

But what happens if you take away that no-pretext prong?  You get an absurd rule.  Police who did not themselves believe there was any emergency could still go in without a warrant — and hope that some clever prosecutor down the road can come up with a scenario where an objective cop, aware of all the circumstances that the police themselves might not have been aware of, might have thought there was an emergency.  And if you think no New York police officer would break down your door in the hopes that it can get justified down the line (if your case even gets that far)… well, the word “naive” springs to mind.

Well, guess what?  Back in 2006, in its Brigham City decision, the U.S. Supreme Court specifically rejected the no-pretext prong of the Mitchell rule.  The Court was being true to its 15-year trend of rejecting subjective rules in federal Fourth Amendment law.  The Supreme Court line of cases does not care whether the police had some pretext or ulterior motive.  So long as there was some legitimate basis for the police conduct, they don’t really care what the police themselves were thinking.

But New York hasn’t had to deal with the issue though.  Not, that is, until a case we argued earlier this year.  

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This January, we found ourselves before the Second Department one month after the Supreme Court had reaffirmed its Brigham City reasoning in an Emergency Exception case, Michigan v. Fisher, decided last December. 

In an unusually lengthy argument — the panel simply disregarded time limits, and let both sides argue for well over an hour — we found ourselves being asked by the panel what the new New York rule ought to be.  At first, we tried to suggest that no new rule was needed here, and anyway that was a job for the Appellate Division.  On seeing some raised eyebrows, however, we quickly gave the panel our thoughts.

It’s pretty straightforward, if you ask us.  The police who are entering the home can’t be protected by the Emergency Exception unless they themselves thought there was an emergency.  Based on the circumstances actually known to them at the time, they had to have honestly believed that someone inside the home was in dire need of their assistance. 

So we’d have a subjective test that does not have anything to do with pretext:

1) The police must subjectively believe that there is an emergency inside the premises.

2) That belief must be objectively reasonable, based on the facts known to the police at the time.

That’s all that’s really needed.  And that’s essentially what we argued.

And yet…

It is now the middle of July, and still no decision.  Just for context, most appeals before the Second Department have an opinion within weeks.  And even the most complex cases we’re aware of there still have had an opinion within a couple of months.  We’re at six months and counting…

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When a decision is this long in coming from the Second Department, you know they’re wrestling with something.  Maybe it’s the facts of the case.

The facts are actually kind of neat.  Our client was in the hallway of the apartment building where he was staying.  In front of his door, before he’d been able to open it and go inside, he was stabbed in the neck by an assailant.  The assailant ran downstairs, and our client ran upstairs to get help.  Police came and found our client a couple of floors up, and he gave them a good description.  Officers quickly arrested the assailant at a nearby subway platform, found him with a backpack full of weapons, and took him back to be identified.  Our client was in an ambulance at this time, and positively ID’ed his attacker from inside the ambulance.  The attacker went  to jail, and our client went to the hospital.

Once everything was over, the police hung around.  They wanted to go inside the apartment where our client had been staying.  They sent the super to get the keys, and waited several minutes till he came back and opened the door for them.  There was some blood spatter on the door, but the cops didn’t have any reason to think that anyone was inside.  Inside they found stuff and left to get a search warrant.  They told the warrant court that they’d followed a blood trail directly from our client to the apartment and went right in, which wasn’t what had happened at all.

At the suppression hearing, the judge simply could not credit the police testimony.  It was so obvious to everyone that they were making stuff up — poorly — that the hearing was almost a farce.  To make matters even more farcical, the prosecutor’s theory of the case kept changing.  They brought in another prosecutor to argue the law stuff, who came up with yet another theory of the case.  The suppression judge didn’t buy any of it, and threw the evidence out.  The People appealed, and that’s how we found ourselves arguing for a new Emergency doctrine for New York.

On second thought, it’s probably not the facts.  The court has to be struggling with crafting a new law that will withstand appeal.  Because it’s a sure thing that, whoever wins this one, the other side is going to take it to the Court of Appeals.

So should the law be that the cops don’t necessarily need to subjectively believe there’s an emergency, so long as some objective person with full knowledge would have believed there was one (the People’s position)?  Or should the cops need a subjective belief that is also objectively reasonable (our position)?  Or should the law be something else entirely?

What do you think?

In the early days of the War on Terrorism, the Bush administration wanted to know what interrogation techniques were legal.  So it asked the DOJ’s Office of Legal Counsel for a memo on what could and could not be done to prisoners.  Staff lawyer John Yoo was tasked with doing the research and writing.  He did his research, wrote his memo, and that was that.

Well, no.  That was not that.  Some people didn’t agree with his legal reasoning.  More people (most of whom never even read the memo) shrilly lambasted it as a “war crime.”  We’re not particular fans of the memo ourselves (see our parody of it here), but we think it’s beyond stupid to call it a war crime, or even the slightest bit of misconduct.  He did what any lawyer in that situation is supposed to do: he analyzed existing law, and gave his opinion of what the law said.  The fact that other people disagree, even disagree strongly, doesn’t mean he did anything wrong.  The fact that his conclusions don’t comport with other people’s policies or principles still doesn’t mean he did anything wrong.  Even if he was wrong, that doesn’t mean he did anything wrong.

But now the 9th Circuit is struggling with the issue of whether Mr. Yoo can actually be sued for having written that memo.  Again, we’re no fans of the memo, but how he could possibly be sued for having given fair legal advice is beyond us.  Allowing this case to go forward, as we’ll discuss in a minute, would have enormously bad consequences for the government and the military.

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The case was brough by Jose Padilla, a.k.a. Abdullah al-Muhajir, who was arrested in 2002 for plotting a radioactive “dirty bomb” attack.  Padilla was in military custody for about four years, during which time he claims to have been subjected to sleep deprivation, stress positions, extended periods of light and dark, and other interrogation techniques.  Padilla filed a lawsuit last year against John Yoo, claiming that Yoo’s memos “set in motion a series of events that resulted in the deprivation of Padilla’s constitutional rights.”  Almost exactly a year ago, the district court judge in San Francisco denied the motion to throw out the case.  Judge Jeffrey White said that “government lawyers are responsible for the foreseeable consequences of their conduct,” and that Yoo exceeded the normal role of a government attorney, in that he wrote both the Administration’s interrogation policies and the legal opinions justifying them.

Yoo appealed that decision, arguing that not only is there immunity here, but letting the suit go forward would interfere with the President’s war powers.  Liberals take note: the Obama administration is siding with Yoo.

Padilla’s argument to the 9th Circuit is that someone has to be held accountable for what happened to him.

Oral arguments were yesterday (listen here).  There’s a nice writeup on them over at Law.com.  Of the three-judge panel, Judge Raymond Fisher seemed clearly to be on Padilla’s side.  Fisher held that Yoo wasn’t merely acting as a lawyer, but was actually involved in setting administration policy.  Fisher also said that Hamdi v. Rumsfeld means the government doesn’t have total immunity here – it “doesn’t have a blank check, and that’s what we are wrestling with.”  (Where Fisher gets that from, we don’t know.  Hamdi only says that the government can’t hold a U.S. citizen indefinitely without some judicial review.)

Siding with Yoo and the government was Judge Pamela Rymer, who questioned whether the courts could even establish standards for “imposing liability on a non-policymaking lawyer.”  She said this case was like the Maher Arar case (for which the Supreme Court denied cert. yesterday), which dismissed a lawsuit against U.S. government officials for causing a man to be tortured.

The third judge, Rebecca Pallmeyer, didn’t really signal which way she was leaning.  Pallmeyer isn’t an appellate judge, she’s with the Northern District of Illinois, sitting here by designation.  She’s a Clinton appointee, and former administrative law judge for the Illinois Human Rights Commission.  That might indicate an innate leaning in favor of Padilla here, but really that’s the merest speculation.

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We don’t see how Yoo can be sued here.  But let’s say the case does go forward.  Even then, we still don’t see how Padilla has a valid claim.  Sleep deprivation, stress positions, light/dark confusion — these are all long-standing interrogation techniques that have been used for decades.  They do not cause physical injury, though stress positions can be extremely uncomfortable.  Sleep deprivation and light/dark confusion are fantastic non-violent painless methods for breaking down an individual’s resistance to questioning. 

The whole point is to overcome someone’s free will, and get them to give you information they don’t want to reveal.  We don’t allow that for criminal prosecution.  The Fifth Amendment is specifically designed to ensure that people aren’t forced to convict themselves out of their own mouths against their will.  But criminal penalties and national security are entirely different.  Unlike criminal cases, in national security situations we want to overcome the individual’s free will.  If that can be done without causing serious physical injury, then great.

And the constitutional rights at issue only apply in the criminal sphere.  They don’t apply to enemy combatants or the conduct of war.  Pretrial detainee rights don’t apply to combat prisoners.  There may be some floor of constitutional rights that any individual is entitled to, but the criminal-justice rights are not that floor.

So we’d say there’s no legal claim to start with.  And even if there were, we can’t see how Mr. Yoo would be a proximate cause of any injury.  It’s not as if he ordered Mr. Padilla’s treatment.  He merely opined that it would be lawful.

-=-=-=-=-

But there’s a deeper policy danger here, if the court sides with Padilla.

Right now, the United States is waging the most careful warfare ever.  And lawyers are a big part of it.  When an officer gets some video from a Predator or a C-130, or a radio call from troops in the field, and that officer has to make an urgent call right then and there whether to authorize fire, he’s going to get a fast legal opinion first.  A military lawyer is going to be consulted for a legal opinion on whether the action is appropriate.

If Padilla wins, then those lawyers will not be immune from lawsuit for the consequences of their legal advice, even though they’re not the ones giving the actual orders.  That’s going to have a huge chilling effect on whether those lawyers will give the advice they believe to be best, if giving the right answer could get them in trouble.  The result would be advice that unnecessarily hamstrings military operations, resulting in prolonged combat and unnecessary casualties and expense.  Either that, or officers will just start ignoring the advice, with equally negative results.

Likewise, siding with Padilla would have a chilling effect on lawyers throughout the DOJ.  The government relies on them to give the best legal advice they can.  But if their best advice is politically unpopular, they’re going to shy away from it in order to avoid personal liability when some shrill person files suit.

Our government needs legal advice that is right, not legal advice that is politically convenient.  Knocking down the immunity of government lawyers from suit would only knock down the government’s ability to get the best advice it can.

And that’s just stupid.

[Edit: We forgot to add that this would also be a victory for the enemy, giving them yet another long-term weapon for their ongoing lawfare -- fighting those countries with a rule of law by using their own law as a weapon.  See more on this at our Primer on International Law here.]

There are four Mondays left in June.  Four more days in which the Supreme Court is expected to announce its decisions in the 27 or so cases still out there this term.  That’s about one case per day from now till then.  We’re picturing the Justices pulling all-nighters, stacks of empty pizza boxes in the halls at 2 a.m. next to the burn bags (do they still use burn bags there?), and sleepy zombie-like clerks dropping in their tracks every now and then.

Some of those cases have to do with boring old civ pro or shipping or labor law.  But a whole bunch are about the cool stuff, criminal law.  Here are a few of the criminal cases we’re watching particularly closely:

Black v. United States
Weyrauch v. United States
Skilling v. United States

This trio of cases attack the “honest services” fraud law.  18 U.S.C. § 1346 was supposed to prevent political corruption, but Congress wrote it so sloppily that it’s become a catch-all crime for federal prosecutors.  Anyone can get charged with it, and nobody knows what it means.  The Court telegraphed its dislike of the statute during oral arguments of all three cases.  We’re going to be shocked and appalled if the statute survives the month.  (Read more of our commentary here.)  The feds also see this going the way of the dodo, as evidenced by their rush to add other charges to prominent cases after the first oral arguments in December.

Holder v. Humanitarian Law Project

This one also delves into the constitutionality of a law, this one intended to stop people from providing assistance to terrorists.  Like the honest services statute, however, 18 U.S.C. § 2339B(a)(1) is pretty darn vague.  It also seems to limit perfectly lawful speech, which would also be unconstitutional.  The feds (represented by nominee Elena Kagan) seem to want the law interpreted very broadly, to maximum effect, but during oral arguments the Supremes expressed deep problems with the statute.  It might get kicked back to the lower courts for more fine-tuning of the issues, though, rather than an outright invalidation of the law.

Dillon v. United States

There are a lot of federal inmates serving unfairly long sentences, due to the bizarre discrepancy in sentencing for crack vs. powder cocaine.  (See our latest piece on this here.)  In 2007, the Guidelines were amended a teeny bit, permitting a 2-level reduction for crack cases.  In 2008, that was made retroactive, so prisoners could get resentenced.  Dillon wanted to get resentenced.  But he wanted more than the 2-level reduction.  He wanted a departure from the Guidelines recommendation itself, as permitted by Booker.  But the feds say Booker only applies to full sentencing proceedings, not to resentencings like this — this is just an adjustment of the guideline range that should have been applied to a pre-Booker sentence.  As Scalia pointed out at oral argument, that would require the courts to essentially disregard Booker.  And given the universal loathing of the crack/powder disparity, we think a finding for Dillon would give the courts the ability to take the injustice into account and impose variance sentences more proportional to those for powder.

McDonald v. City of Ohio

A follow-up to the Heller case a couple of years ago, which said as a matter of federal law that the Second Amendment recognizes an individual right to own a gun, which predated the Constitution.  In McDonald, the issue is whether that applies equally to the states as well, or whether the states can limit or regulate the right to bear arms.  The Court seems likely to narrowly rule that the 2nd Amdt. is incorporated into the 14th, and that the right’s a fundamental one that all the states have to respect, but not get into whether this limitation or that regulation is constitutional.  Those details can be dealt with in the lower courts on remand.

Magwood v. Patterson
Holland v. Florida

Habeas cases that we admit not reading up on when they were argued.  In Magwood, the defendant already won a federal habeas petition, and got resentenced.  Now he’s got a second federal habeas, challenging the new sentence on constitutional grounds.  He could have challenged the original sentence on those same grounds.  So the issue is whether this new petition is a “second or successive” claim that has to be rejected under the AEDPA.  Just on a gut level, we don’t think the defendant’s got much of an argument here. 

Holland deals with a defendant whose habeas petition was filed too late, due to the negligence of his attorney.  The defendant wants the limitations period tolled equitably, in the interests of justice.  Florida says equitable tolling should never be allowed.  Seems like the Court’s going to allow it, but clarify when it’s available.

-=-=-=-=-

Also, we’re still waiting on an important case out of New York’s Second Department, which might create a new emergency exception to the warrant requirement.  Fingers crossed.

When we first moved to NYC in 1997, we thought we knew what racial tension was. After all, we’d grown up in various parts of the South and out West, and had seen and heard quite a lot of invidious prejudice. But we hadn’t seen anything, by comparison. We’d seen dislike and resentment out there, but the vitriolic race relations of the 50s and 60s had died down by our childhood in the 70s and 80s. We weren’t prepared at all for the outright hatred various groups expressed for each other in the grand metropolis. That first year here in the Manhattan DA’s office was an eye-opener. The city, especially the outer boroughs, seemed less like a melting pot than a petri dish, with virulent strains of hatred all fighting each other. Many working-class whites routinely used epithets one almost never heard in the South any more, and openly despised black people. Lots of black people hated white people right back, and seemed to have a bizarre animus towards jewish people, who we’d always thought of as champions of civil rights. African immigrants hated African-Americans, who they saw as lazy and as giving them a bad name. Every ethnic group seemed to have a derogatory name that everyone else used.

And this internecine feuding was still turning to violence in the ’90s. We’d never heard about the Howard Beach or Bensonhurst dramas of the late ‘80s, but here in the city that tension was still high. Al Sharpton hadn’t yet faded into irrelevance, and it seemed like he and his protestors spent half their time marching in circles somewhere or other. Right before we started at the DA’s office, the Abner Louima case happened, leading not only to renewed distrust of the NYPD, but even more racial tension. And just when that started to die down, the Amadou Diallo shooting flared it up again.

It was shocking to us. But to our friends who’d grown up here, it was just normal background. It was just the way things were.

So that’s what the culture was like in 1996, when a fight between some Italian men and a black man over a parking spot turned violent, the black man swung a baseball bat at an older Italian man, whose son — an off-duty cop — shot the black man to death.

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On October 3, 1996, in the suburb of Dobbs Ferry just north of the city, a black man named Charles Campbell parked his Corvette at a deli, in a spot reserved for deli customers. But he went into a different store across the street. When he came back, he saw the owner of the deli placing a sticker on the Corvette. Campbell got angry and started a fight. The deli owner, his son Richard DiGuglielmo (the off-duty cop), and a third man (Robert Errico, the cop’s brother-in-law) wound up fighting with Campbell.

The fight ended, and Campbell walked back to his Corvette. During the fight, his shirt had come off, and the deli owner brought it over to him while his son and the other man went back towards the deli. But then Campbell opened the back of the Corvette, grabbed a metal baseball bat, and kneecapped the old man with it.

The old man went after him to try to take the bat away, while his son ran into the deli to get a pistol. Campbell went to the other end of the parking lot, swinging at the old man with every step. By this time, the old man had taken a crack to the hand, as well. Several witnesses saw Campbell threatening with the bat, now, holding it in a stance like he was about to swing.

At that moment, DiGuglielmo ran up with the gun and shot Campbell three times, killing him.

-=-=-=-=-

Two witnesses saw it from inside a truck parked right there. After the shooting, they made statements to the press and to the police that Campbell was still swinging the bat at the old man, had swung at his head, and was about to swing again when he got shot.

At trial, however, they testified differently, telling the jury only that Campbell was holding the bat in a batter’s stance, but was not swinging the bat, when DiGuglielmo shot him.

The trial was a mess. The local district attorney, Jeanine Pirro, was a publicity hound (and more than a bit of an embarrassment to those of us in other DA’s offices), and tried the case in the press, basically calling this a hate crime and accusing the DiGuglielmos of being racist. She dearly wanted to get a cop convicted here. After the defense rested, the prosecution figured out that they weren’t going to win on the charge of intentional murder, and switched their theory to “depraved indifference” to children who were on the street near the deli.

Forgetting that the prosecution’s job is to prove what really happened, and not plead in the alternative two different ways it might have happened, they asked for both theories to be presented to the jury as alternatives. The jury threw them a bone, convicting DiGuglielmo of depraved-indifference murder, not realizing that it carries the same penalties as intentional murder. DiGuglielmo got 20 years to life, for defending his father.

The appeals were a mess, too. We’ll spare you the details.

Fast-forward to 2006. The two key witnesses from the trial, who had witnessed the events from their truck, had now come forward with evidence that they had been pressured by the police to change their stories, during a course of police interrogation in the days following the shooting.

This was clearly new evidence that would have had a big impact on what the jury would have thought. And it was certainly evidence helpful to the defense that had not been disclosed by the People. So at the very least there was a clear Brady violation. And maybe it counted as newly-discovered evidence that would have resulted in a more favorable verdict.

So DiGuglielmo filed a CPL 440.10 motion to vacate the conviction. The court, to its credit, found this to be the right kind of newly-discovered evidence, and certainly Brady material.

In a detailed, 69-page decision, Judge Bellantoni vacated the conviction, and on September 19, 2008, DiGuglielmo was released from prison.

The DA’s office appealed.

This week, DiGuglielmo was ordered back to prison.

-=-=-=-=-

What happened?

What happened is, the Appellate Division screwed up. You can read the opinion here, and see for yourself.

It’s a horrible decision, and we’re frankly surprised that it made it out of the draft stage in this form.

Here’s the logic, in a nutshell:

(1) Based on the testimony at trial, the jury must have concluded that the father was being the aggressor, and that the victim was backing away, and most importantly that the victim was not swinging at his head.

(2) The new evidence contradicts those conclusions. The new evidence is that the men in the truck saw the victim swinging at the father’s head, and was about to do so again. The new evidence is that they made multiple statements to that effect on the day of the shooting, but only changed their stories after several days of police pressure to do so.

(3) Because the new evidence is contrary to what the jury concluded, it must be something the jury didn’t believe. Therefore, the jury wouldn’t have believed this new evidence. And so the new evidence wouldn’t have changed the jury’s mind.

That’s circular reasoning. The jury didn’t believe the victim was about to take a swing at the old man. Therefore, the jury wouldn’t have believed evidence to the contrary. So it wouldn’t have made a different to introduce such evidence.

And how is that not Brady, at the very least?

-=-=-=-=-

And compare this brief, careless decision with the more lengthy one below. Say what you will about it, Judge Bellantoni’s decision is not lacking in analysis of the law and the facts. And he clearly made every effort to do it right.

The judiciary must not take on the coloration of whatever may be popular at the moment. We are the guardian of rights, and we have to tell people things they often do not like to hear.” – Hon. Rose E. Bird. Our oath requires that we make the right decisions, even if difficult and unpopular. It must be stated that this Court, in its above discussions and ultimately, its decision in this case, certainly does not intend to disrespect the memory of Charles Campbell or the Campbell family. This decision was not made lightly. Indeed, for the past two years, the Court has struggled with, and considered, all of the arguments and positions connected with the issues in this case and it’s ruling is consistent with the undercurrent of the criminal justice system – that where an injustice has occurred, all benefit of the doubt, consistent with current case law and precedent, must be afforded an accused. Thus, for the factual and legal reasons stated above, this result is mandated by the principles of justice.

(Decision and Order, Sept. 17, 2008 at 67.)

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And it’s just a slap in the face for the Appellate Division to cite to People v. Tankleff, 49 A.D.3d 160, 180-181, in support of its decision here. In Tankleff, the defendant showed there was a reasonable probability that, had all of the new witnesses testified at trial, the outcome would have been different, and the Appellate Division granted Tankleff a new trial. Here, the same thing happened. So at a minimum DiGuglielmo ought to have been awarded a new trial.

Instead, the court simply sent him back to prison, without even giving a jury the opportunity to evaluate all of the new and old evidence and witnesses.

This decision sends an awful and disturbing message: Innocence is irrelevant.

-=-=-=-=-

This week’s decision is one of the biggest screwups we’ve seen in a long time. And the result is tragic.

Think about it. The man was wrongly convicted in the first place, after a show trial making him a scapegoat of the racial politics of the day. He spent 11 years in prison, unjustly. But then justice finally prevailed, and he got his freedom back. He got to return to life and his family. And then, with a callous stroke of the pen, a badly-reasoned decision rips him away from that cherished freedom, and tosses him back into prison.

Going in the first time was bad enough. We can’t imagine how much worse it must be this time.

Badly done, Appellate Division.

[Our paralegal, Marty Tankleff (no stranger to unjust convictions himself) contributed to this piece.]

The Fifth Amendment says a person can’t be prosecuted twice for the same offense. So after a jury comes back with a verdict, if the government doesn’t like that verdict, then too bad, it doesn’t get a do-over. This is called “Double Jeopardy,” from the language of the Amendment saying you can’t “be subject for the same offense to be twice put in jeopardy of life or limb.”

Sometimes, Double Jeopardy applies even when the jury never reached a verdict. Usually, if the judge declares a mistrial, there’s no jeopardy problem and everyone does the trial over again. But there are exceptions, such as when the mistrial was caused by prosecutorial misconduct. Or when a judge orders a mistrial for no good reason. There’s a presumption that judges shouldn’t go around declaring mistrials, that cases should be allowed to go to verdict. So when a judge calls “mistrial” for no good reason, the defendant isn’t going to be forced to go through the whole thing all over again.

[Aside: We had that happen in one of our cases, when we were a prosecutor. In the middle of a drug trial, we were severely injured in a motorcycle accident (and by “severely,” we mean “it took 6 weeks to stabilize to the point where they could do surgery to put the bones back in”), and as a result we couldn’t finish the trial. Drug cases being all pretty much alike, and prosecutors being pretty much fungible, the DA’s office sent over another lawyer to finish out the case. The judge instead declared a mistrial, over the objections of both sides. The office wound up having to consent to dismissal on Double Jeopardy grounds. Whaddayagonnado.]

Back in 1824, the Supreme Court ruled in U.S. v. Perez that one good reason the judge can declare a mistrial is when the jury is deadlocked. When the jury cannot reach a decision, it’s not like the defendant’s being screwed by an unfair judge or an abusive prosecutor. So a judge is allowed to ask for a do-over with a different jury.

“To be sure,” the Court said, “the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious cases….”

-=-=-=-=-

So that brings us to the case of Renico v. Lett, argued this morning before the Supreme Court (you can read the transcript here).

Reginald Lett was on trial for murder. The case was presented intermittently, five days out of two weeks, and the jury finally got to start deliberations at 3:24 p.m. on a Thursday. They deliberated for 36 minutes, then went home. On Friday (the 13th), they came in, deliberated for a mere four hours, and sent out a note. The note didn’t say they were deadlocked, but merely asked what would happen “if we can’t agree? Mistrial? Retrial? What?”

The judge brought the jury out and asked “is there a disagreement as to the verdict?” The foreperson said yes. The judge badgered the foreperson a bit, insisting on her predicting whether the jury could reach a unanimous verdict, and finally the foreperson said “no.” The judge immediately declared a mistrial.

Now this was highly unusual. Most judges, in our experience, give a supposedly deadlocked jury a few chances to go back and reach a verdict (three seems to be the magic number here in New York City). We’ve had jurors shouting at each other so loud that everyone could hear them plainly out in the courtroom. All that meant to anyone involved, however, was that they actually were deliberating. A zesty exchange of ideas is still an exchange of ideas.

At some point, either the second or third time the jury says they’re deadlocked, the judge will give an Allen charge. Basically, the jurors are told something like “everyone’s been working their asses off on this case for a long time, costing a shitload of money, and you jurors don’t seem to be holding up your end of the deal. If you can’t do your job, everyone’s going to have to do it all over again with some other jurors, who’ll have to deal with the same stuff you are. Now, take all the time you need, and don’t change your mind without good reason, but get back in there and someone change their mind so we can all go home.” (Ed. note: citation required.)

Depending on who your jurors are, this can be good or bad for the defendant. Generally, whoever’s side the holdout was on, loses.

But the judge in Renico v. Lett never did any of that. Hell, the jury never even said it was deadlocked to begin with. All the jurors wanted to know was what might happen in the event that they should wind up being deadlocked. The judge totally forced the deadlock language onto the record.

All the judge had to say was “it’s none of your business what decision I may or may not make based on your decision. But I can’t do my job until you’ve done yours. So if that hypothetical query was your only question, please get back to work.”

-=-=-=-=-

After the mistrial, Lett had to go through a whole second trial. The prosecutors had now seen the defense’s cards, knew what arguments the defense would make, and presumably did a better job of shutting them down, because this time the jury had no problem finding Lett guilty.

Lett appealed, on Double Jeopardy grounds. This was in Michigan, and the state’s supreme court said no, the judge did everything right under Perez.

Lett petitioned the federal court, which granted habeas on the grounds that the trial court did “fuck-all” to ensure that the jury was really deadlocked. (Ed.: Citation needed again.) The Sixth Circuit agreed.

So Michigan appealed to the Supreme Court, and that gets us to this morning’s arguments.

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It was quite an argument. Neither lawyer seemed to have real mastery of the issues, and so they were wide open to attack from opposing justices. And so sympathetic justices would throw out lifelines. It was like a legal game of catch-and-release.

Justice Sotomayor kicked things off by wondering out loud how anyone could find “that the court was acting deliberately, responsibly, and not precipitously.” Michigan’s lawyer replied that “you have to look at the totality of the circumstances” — weasel words, in our experience, used when the facts are inconvenient. The circumstances were that you could sort of interpret that the jurors were “acrimonious” and you could sort of interpret that they had been deadlocked.

This was not particularly convincing. So Justice Ginsburg fed the state’s lawyer an argument, asking “are you urging that, because the trial court judge was there on the spot, saw the jury, worked with the jury, that that’s something that deserves a special measure of respect?” The grateful lawyer — as everyone seems to do when lobbed a softball like this — replied, “Absolutely.”

That was beside the point, of course. The issue was whether the trial judge had taken reasonable steps to ensure that a verdict could not be reached. Justice Kennedy got everyone back on track, gently suggesting that the judge might have excused the jurors and then asked the lawyers whether they thought a mistrial was appropriate. Getting the input of both counsel is typically considered part of the judge’s weighing of the situation in these matters, after all.

After some back-and-forth, Justice Breyer pointed out that of all the cases where a mistrial was declared, very very few are going to have facts like these. “What do you want me to read,” he asked, “to see that this is not an extreme case that counts as an abuse of the judge’s discretion?” During a long colloquy, Michigan’s lawyer never was able to answer the question. He started to admit that it’s pretty rare, when Scalia jumped to his rescue, pointing out that it’s not the state’s burden to prove it’s normal, but rather it’s the defendant’s burden to prove it’s abnormal.

It was clear that Scalia was irritated at the lawyer for not responding to these questions as he could have. But he was still on Michigan’s side. That did not seem to be the case for the other justices who spoke up. It was pretty obvious the rest of them thought the judge hadn’t done enough.

Scalia was waiting to pounce on the defendant’s lawyer, to ask how they’d met their burden of proof to show that there was not a deadlocked jury. Counsel didn’t do a great job with this, trying to somehow argue that there was no factual finding of a deadlock, though it was implicit.

And the defendant’s counsel didn’t do so hot during a tag-team by Alito and Breyer, where they got her to admit that there was no case out there where something like this was held to be an abuse of discretion. The Chief Justice tried to help her out, but she flubbed it, citing only a general principle against irrational and precipitous decisions. Scalia would have none of that, pointing out that what’s needed here is proof that the judge’s decision was contrary to, or involved an unreasonable application of, clearly established federal law.

(We do our share of habeas petitions, ourselves, so we ought to mention that Scalia’s correct here. You can’t just say it was an abuse of discretion. You have to say that there’s a federal standard that was applied, and it was applied wrong.)

Stevens jumped to her rescue, pulling her away from the precipice of whether there was an abuse of discretion, and feeding her the line that the issue is really “whether there was a manifest necessity” to declare the mistrial.

There was some back-and-forth with the Chief on this, unfortunately without much meat to it. But it did contain our favorite quote from the term so far:

CHIEF JUSTICE ROBERTS: I’m sorry, please finish your sentence.

MS. McCOWAN: No.

CHIEF JUSTICE ROBERTS: Okay.

Sotomayor finally got the lawyer to say something worthwhile, by asking how the state court unreasonably applied federal precedent. The lawyer remembered that Arizona v. Washington requires that the judge exercise sound discretion, and here the judge didn’t exercise any discretion. And failure to exercise discretion is an abuse of discretion. The Michigan supreme court improperly applied federal law by failing to see that.

And here she was on solid ground at last. Scalia’s retort she could now easily clarify. The Chief spelled it out for her a little better, that some abuses of discretion aren’t going to be enough for a habeas challenge, but they will be if the state supreme court unreasonably applies the federal standard to make its call.

That’s how she should have started her argument, but at least she got to it in the end.

The rest of the defense’s argument was spent parsing the jury’s note and the transcript, to figure out what was really being said, what might have been meant, and what else might have been said. That’s important, because it means the justices were getting to that issue. They had crossed the threshold of whether the legal standard applies here, and were now diving into the merits. And that’s good for the defendant, because it’s hard to say that the judge was acting anything other than precipitously here. (Ed. note: Are you sure the correct word isn’t “precipitately?”)

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So, given the way the argument went, how do we think the Court will decide the case? We’ll say 6-3 in favor of Lett. Scalia is not convinced that the AEDPA was satisfied here, and Thomas will probably go along with him (though statistically, he doesn’t side with Scalia any more often than other similar justices side with each other). Alito didn’t seem all that taken with the defense side. But Roberts, Stevens, Breyer, Kennedy, Ginsburg and Sotomayor all seemed slightly on the side of calling this an abuse of discretion.

So we predict they’ll say the judge should have at the very least gotten some input from trial counsel, and maybe even some more solid evidence of deadlock, before calling a mistrial. That was an abuse of discretion, and the Michigan supreme court improperly applied Supreme Court precedent in finding otherwise. And the abuse of discretion was severe enough that the defendant got screwed, triggering the protections of Double Jeopardy.

We’ll find out if we’re right in June.