Our jury system is supposed to maximize justice.  So how come our system only makes it harder for jurors to do the right thing?

Take this example: A judge in Florida today began reading some 100 pages of instructions to the jury in a case charging a lawyer with stealing $4 million from clients.  A hundred pages of instructions.  Which the jurors are expected to absorb through their ears.  Which, on appeal, the jurors will be presumed to have remembered perfectly, and to have applied with absolute precision.

Nobody really believes that jurors remember the details of their instructions, of course.  And nobody really believes that they apply those instructions to the letter.  It’s just a useful fiction.  Like so much of the law, what’s important is that the litany was spoken.  Say the right words, and we can all presume the right thing was done, and we can all move on with our lives.  

The system is more interested in finality than with the truth, is why.  The truth is nice, and something to be hoped for, but it isn’t necessary.  The whole point of a trial is not to arrive at the truth, but to arrive at an official version of the facts.  The judge can then apply the law to these official facts, and then everyone can close the book on that matter.  It’s a kind of justice, perhaps, but it’s not about truth, and it never has been.  The jury’s job is to consider the admissible evidence, and decide whether it makes out certain facts.

That’s really not a huge task.  Oh, it can be difficult to weigh evidence and separate fact from falsehood, but the task itself is very straightforward.  In a criminal case, for example, the jury has only to decide whether the defendant committed each of the elements of the crime.

Nevertheless, we sure make it hard for them to do even that.

The elements they are to consider, after all, are in the judge’s instructions.  And the judge won’t read those instructions to the jury until after all the evidence is in and both sides have summed up.  So the whole time the jury is listening to the evidence, they don’t know what they’re supposed to be listening for.  The judge never told them what the elements are that the prosecution has to prove.  And woe unto any lawyer who tries to do the judge’s job and instruct the jury beforehand.  No, the jurors now have to go back in their memory and figure out if the evidence they remember satisfies each of the elements.

This is all the more difficult in that most jurors don’t get to take notes.  They’re just presumed to have remembered everything that was said, which of course is impossible.  And they can’t take notes during the instructions, either.  They’re just presumed to remember all that mumbo-jumbo as well.  Don’t imagine for a moment that they do.

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It’s as if we stick 12 good citizens in a box and tell them another human being’s fate rests in their hands.  If they do the wrong thing, somebody is going to suffer severe, life-changing harm.  An innocent person could lose his life or his liberty.  A victim could be unvindicated.  A dangerous person could go free to harm again.  It’s a massive responsibility to do the right thing. 

They don’t know any of the relevant facts, and were in fact specifically chosen because they don’t know anything about the case.  We’re going to give them a whole bunch of facts with which to make that determination, but some of the testimony might be wrong.  It’s up to them to figure out what to believe.

Some of the stuff they’re going to hear will be very important.  Some won’t be.  We’re not going to tell them which is which.

They won’t know until it’s all over what they should have been listening for.  And we won’t let them take notes to jog their memory.

They will be given the testimony and instructions in the absolute worst possible way, by spoken word.  They cannot read the instructions themselves.  They cannot read the minutes of the testimony themselves.  It can only be read to them.  Even if they are actively listening — a rare event to begin with — humans simply do not recall much of what is merely spoken to them.  And what they do recall, people tend to get wrong, filling in their own words and meanings.

So we put all the pressure on our juries, then make their job far more difficult than it has to be.

Is it any wonder that experienced lawyers say a jury trial is a crapshoot?  Nobody ever knows what a jury is going to do — if they say they do, they’re deluded or lying.  Nobody knows what a jury is going to do, in large part, because the jury doesn’t even know what it’s supposed to do.

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The solution is simple.  Give the jurors a written list of elements, and what they mean, before the trial starts.  Let them take notes.  Let them bring the transcript with them into the jury room.  Let them bring the instructions with them into the jury room.  There is no rational reason not to do any of this.  The only reason we don’t now is because of this arrogant “they can’t be trusted with it” attitude, that supposes jurors would interpret things wrong, or stop paying attention to read or write stuff down.  This is contrary to real life, where being able to re-read and digest written words improves accurate understanding, and where taking notes increases attention and retention.

The solution is simple.  Folks have been proposing modest fixes like this for years.  And yet nothing changes.  We in the law tend too much towards the “it was good enough for us back in the day, it’s good enough for us now.”  We forget that it never was “good enough,” and it can certainly be better.

In the meantime, our jury system will continue to defeat the justice it is supposed to serve.

—–

[P.S. No, we didn't just lose a trial.  We haven't lost a hearing or a trial since 1999.  This is a legitimate gripe, not sour grapes.]

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.

-=-=-=-=-

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?”)

-=-=-=-=-

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.

The Supreme Court is back in session, well rested from a three-week vacation. (We don’t remember the last time we took three weeks off. Wonder what that must be like.) They opened the day this morning with two interesting per curiam decisions.

The first, Wilkins v. Gaddy, is about what counts as “excessive force” against a prisoner. There was some confusion among the circuits here.

This was a case coming out of North Carolina. A prisoner named Wilkins asked a prison guard for a grievance form. The guard, Gaddy, lost his temper. Wilkins claims that Gaddy threw him to the ground and beat him up, until another officer came and pulled him off. At the end of the day, though, his only injury was a bruised heel and some lingering pain.

The Fourth Circuit said that didn’t count as “excessive force,” because there wasn’t much injury. The main case on point was Hudson v. McMillian, 503 U.S. 1 (1992), which the Fourth Circuit had been interpreting to mean that the prisoner’s injuries had to be more than de minimis. And a bruise on your heel is about as de minimis as it gets.

The Supreme Court reversed, saying that’s not at all what Hudson was saying. Calling the Fourth’s reading of that case “strained,” the Supremes clarified the rule in no uncertain terms: the focus is not on what happened to the prisoner, but on what the corrections officer did.

The issue is not how significant the injuries were, but whether the correction officer’s force was “nontrivial,” and “was applied maliciously and sadistically to cause harm,” rather than as part of “a good-faith effort to maintain or restore discipline.”

So, just because a prisoner got hurt, that doesn’t mean he was subjected to cruel and unusual punishment. People can get hurt for other reasons; that makes sense. What matters is whether he was assaulted, subjected to unjustifiable ill treatment. The extent of injury doesn’t have anything to do with whether his rights were violated in the first place — they merely go to “the damages he may recover.”

-=-=-=-=-

The second case decided today, Thaler v. Haynes, is a Batson case out of Texas.

This was a death penalty case, so the stakes were high. There’d be some pressure on everyone involved to do it right. But the criminal law being what it is, things went weird from the get-go.

When the attorneys questioned potential jurors during voir dire, they were in front of Judge Harper. But when they sat down to exercise their peremptories, they were in front of a different judge, Judge Wallace, who hadn’t been there for the questioning. An unnecessary wrinkle that only caused problems, as it turned out.

Because the prosecutor struck a Black woman named Owens, and the defense cried Batson.

(Batson, for those of you playing along at home, is a case that says race cannot be a valid basis for a peremptory challenge, which ordinarily can be for any reason. It’s a strange decision, because it’s not written to protect the rights of the individual defendant. It doesn’t matter if the people being excluded are of the same race as the defendant. The prosecutor can raise a Batson challenge to defense peremptories as well. The reasoning is that it’s not the defendant’s right’s being violated, but the rights of potential jurors. Seriously. We told you it’s a strange one. But we use it as if it somehow were protecting the defendant’s rights, perhaps to a representative venire or some such.)

After crying foul, the defense had to make out a prima facie case that the prosecutor was excluding Black people. They seem to have done so, and so then the burden shifted to the prosecutor to give an explanation for striking Owens that had nothing to do with race.

The prosecutor said Owens’ demeanor and body language indicated that she wasn’t taking the proceedings seriously, and that she wouldn’t be neutral when considering the death penalty.

The defense argued that there was no way Judge Wallace could assess that explanation, because he wasn’t there to see the jurors’ demeanors himself during questioning.

Judge Wallace ruled that there was no Batson violation, the case went to trial, Mr. Haynes was convicted, and he was sentenced to death.

Haynes appealed on the Batson issue, lost, and the Supremed denied cert. He lost a state habeas petition, and then went for federal habeas. The District Court said no, but then the Fifth Circuit found otherwise:

An appellate court applying Batson arguably should find clear error when the record reflects that the trial court was not able to verify the aspect of the juror’s demeanor upon which the prosecutor based his or her peremptory challenge.

So the Fifth Circuit said no court could ever adjudicate this issue here, because all anyone has is the paper record of Owens’ questioning, and there’s no record of her demeanor. So they ordered a new trial, a complete do-over.

This morning, the Supreme Court reversed. The two cases cited by the Fifth Circuit, Batson and Snyder v. Kentucky, nowhere say that a judge can’t accept a demeanor-based explanation unless that same judge was also a witness to the demeanor. Batson said the judge has to consider all possible explanatory factors. Snyder dealt with a peremptory challenge where the prosecutor gave two explanations, one of which was demeanor; the judge didn’t explain why he overruled the objection; the Supreme Court then held that the demeanor explanation could have been enough, but there’s no way to know whether the judge relied on it or on the other one, which wasn’t good enough.

In Snyder, the Court even specifically said that, although the trial judge’s observations are of great importance when the explanation is based on demeanor, they’re not necessary — as when the judge doesn’t remember that particular juror’s demeanor.

So today, the Supremes clarified once and for all that there is no requirement that the trial judge had to have observed the juror’s demeanor, when that’s the explanation given after a Batson challenge.

This is going to give prosecutors a little more wiggle room to just make up some bullshit story when they have a Batson challenge, but only in cases where the judge got replaced halfway through (impossibly rare), or where they’re confident that the judge wasn’t paying attention (sadly not rare at all). We’d like to say that no prosecutor would ever do something like that, but we’ve seen even worse, so this isn’t exactly heartening.

With only two more decision dates remaining in this Supreme Court term, we’ve got our eyes on four criminal cases yet to be decided. Either next Monday (June 22) or the following Monday (June 29), we should expect to hear from the Supremes.

We’re going to make a prediction right now that all four cases will be decided in favor of the defense. Furthermore, we predict large majorities or unanimous decisions in each case. (Go ahead and laugh, we’ll wait for you.)

The four cases are:

Safford USD v. Redding, No. 08-479. We talked about this one before (see here). A public school had an absurd zero-tolerance policy (surprise, surprise), this time prohibiting prescription Advil. A girl got caught with some. She blamed someone else (surprise, surprise). School authorities confronted the other girl, Redding, who denied being involved. They searched her backpack, and found nothing. They searched her clothes, and found nothing.

Now at this point, a reasonable person might have figured out that the girl who was caught with the actual pills was trying to pull a fast one here. But these were not reasonable people — they were public school officials. So they had Redding — a 13-year-old girl — expose her breasts and vagina. They found no pills. Then they shook out her underwear, and found nothing. Then both the school nurse and another school official physically searched the girl’s body. They found nothing.

Now at this point, a reasonable person would have surely figured out that there was nothing to see here. But these bright bulbs instead stuck the girl in the principal’s office alone for a few hours, didn’t contact her folks, and didn’t bother searching anyone else.

The girl sued, claiming (surprise, surprise) that her Fourth Amendment rights had been violated.

The Supreme Court has now been asked to decide whether public school officials are permitted by the Fourth Amendment to perform a warrantless strip search of a student whom they merely suspect of possessing forbidden contraband.

The school wants the Court to say yes, schools can perform strip searches any time they have reason to suspect that a student has forbidden contraband. They want a rule that doesn’t let judges second-guess the judgment of school officials.

Our prediction is that the Court isn’t going to grant such a bright-line rule. For the reasons we set out in our previous post, we predict that the Court will require a case-by-case analysis. It will be fact-specific, whether the officials have evidence that is sufficiently credible to justify an articulable suspicion that contraband will be found during a strip search. And it will require a balancing, to ensure that the invasiveness of the search is proportionate to the danger of the contraband sought. A strip-search to find an explosive is one thing; but examining a young girl’s private parts to find Advil is another thing entirely.

* * * * *

The next case we’re looking for is Yeager v. United States, No. 08-67.

The issue in Yeager is collateral estoppel after a hung jury. Specifically, a jury acquitted on some counts, and hung on other counts, all sharing a common element. Perhaps the only explanation for the acquittals is that the jury decided that common element in the defendant’s favor. So is the government prevented from re-trying the hung counts, by collateral estoppel?

Yeager was an executive with Enron’s telecom unit, charged with 176 white-collar crimes. After a three-month-long trial, the jury acquitted him on the counts of conspiracy, securities fraud and wire fraud. But the jury hung on the counts of insider trading and money laundering.

The Fifth Circuit said that one explanation for the acquittals is that the jury found that Yeager had no inside information. That was also an element of the insider trading count. But the Circuit said it was impossible to determine “with any certainty what the jury” actually must have decided. So that meant there could be no collateral estoppel precluding a new trial.

At oral argument, Justice Souter honed in on the real issue here, which is a conflict between two underlying principles of our current jurisprudence. On the one hand, once a jury has determined a fact, the government doesn’t get a second chance to prove it. On the other hand, the government is permitted a full opportunity to convict, so it is allowed to re-try counts where a jury hung. Chief Justice Roberts and Justices Kennedy and Breyer explored the conflicting principles in greater depth. Although the government’s attorney was more deft at handling the philosophical argument, and Yeager’s attorney seemed to be stuck in a surface argument, it seemed by the end that the Court was siding with Yeager.

What seems to have killed the government’s position here was its assertion that acquittals should not affect retrials if they are not “rational” — meaning they are inconsistent with the jury’s remaining outcomes — and that a hung count is an outcome that can be used to determine whether the actual verdicts were rational. That not only conflicts with precedent that permits inconsistent verdicts, but also defies common sense by treating the absence of a decision as an affirmative determination.

This one’s a tossup, but we’re going to predict a ruling in favor of Yeager here.

* * * * *

The third case to watch for is District Attorney’s Office v. Osborne, No. 08-6.

Osborne was convicted 14 years ago for kidnapping and sexual assault. The victim was brutally assaulted and raped in a remote area in Alaska. Osborne was alleged to have used a blue condom. A blue condom was found at the scene, containing semen. Osborne now wants to get discovery of the semen, and have DNA testing done at his own expense, in the hopes that it will demonstrate his innocence. The State of Alaska refused.

Osborne brought a 42 U.S.C. §1983 civil rights suit, arguing that Alaska’s refusal violated his Due Process rights. The district court dismissed the suit, saying he should have brought a Habeas claim instead.

The Ninth Circuit issued two decisions. The first was that a §1983 suit is fine here, because the outcome would not necessarily undermine the state-court conviction. The DNA evidence could potentially prove his guilt, or be inconclusive. It would only require Habeas if the evidence would have to demonstrate innocence. And he could still bring a Habeas later if the §1983 action fails.

In its second decision, the Ninth Circuit forced the Supreme Court’s hand. The Supremes have long taken pains to avoid deciding whether a convict can overturn his conviction based only on a claim of innocence, rather than on pointing out defects in the way the trial was conducted. But the Ninth assumed that this is permissible.

Then, based on that assumption, the Ninth said that in circumstances like that — in fact, only in circumstances like that — where a convict could later use the evidence in a freestanding innocence claim, then Brady gives a post-conviction right to access potentially favorable evidence.

The Supreme Court is now deciding both issues: whether the §1983 suit is appropriate for accessing DNA evidence post-conviction, and whether Due Process requires such access if it could establish innocence.

At oral argument, Justice Souter barely let the Alaska A.G. get a word out before launching a lengthy debate over whether Osborne merely sought evidence that might or might not allow him to establish a claim later, or whether he sought evidence that he affirmatively believes will be the basis of a claim of innocence. By the end, both Scalia and Ginsburg had gotten involved, and the Chief Justice was wondering whether the State even had the evidence any more. Breyer got everyone back on track, pointing out that §1983 was appropriate when you didn’t know what the evidence was yet, and Habeas is appropriate when you do know. And here, nobody knows what the DNA evidence is, yet. So how come the State doesn’t have a constitutional obligation to give him the DNA?

The AG gave a terrible response, saying that Osborne simply followed the wrong procedure. Half the bench jumped in to interrupt him, dumbfounded at the assertion, given that Alaska doesn’t have a statutory procedure in the first place. The one statute out there (as Scalia pointed out) first requires an assertion that the evidence establishes innocence, which is the one thing nobody can say yet, because it hasn’t been tested yet. Souter and Scalia tag-teamed the AG on that mercilessly. At one point, Scalia had the audience laughing at the AG. For the rest of the oral argument, the Justices would refer to the fact that they “must have missed” this procedure being mentioned in any of the briefs.

By the end of the AG’s time, nobody had even gotten to the juicy issues yet. Breyer tried to give the AG a chance to talk about it, but the AG just went back to his procedural claim that had used up his time already. This only frustrated the Justices.

The U.S., as amicus to Alaska, started off better, getting to the heart of the issue — the issue the Supreme Court has so long avoided — arguing that prisoners do not have the right to challenge their conviction based on a freestanding claim of actual innocence. But Souter suggested that the right may be found, “not in procedural, but in substantive Due Process,” and asked a hypothetical about letting counsel speak to another prisoner who claims to have exonerating evidence. The Deputy S.G. floundered, and got laughed at as well. They never even got to the constitutional issue (as Souter repeatedly pointed out), and got mired in whether the government even has an interest here in the first place. And then time was up.

Osborne’s lawyer did much better. He deflected the Court’s concerns that at trial the defense had chosen not to test the DNA, and thus must have believed it would show guilt, by pointing out that both sides chose not to test it, because the tests available would have destroyed all of the evidence, precluding later testing.

The Justices across the board expressed concern that they were being asked to create a new constitutional right here. Shouldn’t a prisoner have to make a claim, under penalty of perjury, that he is actually innocent first? Shouldn’t there be a requirement of due diligence, so that claims aren’t made years and years after they could have been brought? Osborne’s attorney admitted that those are fine ideas, and wouldn’t be an obstacle here.

Then Scalia tipped his hand a little. Osborne’s lawyer observed that this is the first case where a prosecutor conceded that DNA would be “absolutely slam-dunk dispositive of innocence,” but doesn’t let the prisoner access it. Scalia thought out loud, “you know, it is very strange. Why did they do that, I wonder?” “Well, it’s very…” Scalia interrupted, “there was a lot of other evidence in the case, wasn’t there?” “Well, that’s…” Scalia cut in, “I don’t know what they thought they were doing.”

Scalia, for one, is not likely to side with the DA’s office here.

Souter came back to his conclusion that this is a substantive Due Process issue, which would require that the prisoner first claim that he is actually innocent. This conflicted with the sworn testimony before the Parole Board admitting guilt. But Breyer pointed out that prisoners often wisely admit guilt before such Boards, because they’re not getting out otherwise. (As defense lawyers like to say, forget guilt or innocence, “out is out.”) So relying on Parole Board admissions would be an arbitrary basis for withholding DNA evidence. So “suppose we said that the rule is non-arbitrary, with illustrations. Send it back to the states. And of course, when they apply their own statutes, by and large they’re not being arbitrary.” Osborne’s counsel agreed, “I think that’s a very sound approach to this.” Breyer responded, “well, it does help you win.”

I don’t think Breyer or Souter are siding with Alaska here, either.

The Chief Justice wondered if the right would be depend on the accuracy of the testing available. No, said Osborne’s lawyer, it has nothing to do with it — the right would just prohibit the state from arbitrarily preventing access to evidence. So long as there’s a reasonable probability that the test will demonstrate evidence, then that should be enough.

On rebuttal, the AAG got maybe three words in edgewise.

So just going from the oral argument, we’re going to predict a loss for Alaska.

Now whether that means a whole new constitutional right or not, well we’re not so sure. This only affects a handful of defendants whose convictions came before the Federal Innocence Protection Act in the mid-1990s.

The trick, though, will be whether the Court can continue to avoid the elephant in the room, the issue of whether one can assert a freestanding claim of innocence. The Ninth Circuit made it a prerequisite, and both the liberal and conservative Justices seemed to put a lot of weight on whether the prisoner first asserted innocence.

We predict that the Court is going to go all the way here. And as long as we’re going out on a limb, we’ll also predict a unanimous decision.

* * * * *

The final criminal case yet to be decided is also the oldest: Melendez-Diaz v. Massachusetts, No. 07-591.

The issue is straightforward: Is a lab report, by itself, a form of testimony for Confrontation Clause purposes, per Crawford v. Washington, 541 U.S. 36 (2004)?

Crawford says you can’t introduce earlier statements of a government witness, if they hadn’t been subject to cross-examination.

Well, a police lab report wasn’t subject to cross-examination when it was created. But they are often admitted into evidence without live testimony from the chemist or forensic expert who made the report — they’re self-authenticating. If lab reports are testimonial, then Crawford would preclude this practice. If they are not testimonial, but merely a record, then they could continue to be admitted without live testimony.

The Massachusetts Supreme Judicial Court looked at this conundrum a couple times, and decided that drug analysis reports were simply records of “primary fact, with no judgment or discretion,” by the chemist who prepared them. So they weren’t testimonial, and there was no Confrontation Clause problem.

Melendez-Diaz was the defendant in the second such case, which affirmed the first one.

It’s a sure bet that Scalia is going to side with the defendant here. He has long been a champion of the Confrontation Clause, and his contributions at oral argument were true to form.

The Massachusetts AG was frankly an embarrassment, making inaccurate assertions (and being corrected by the Court), resting heavily on the lame argument that nobody’s made this particular claim before, and claiming that requiring chemists to testify would be an “undue burden,” even though it’s no such burden to California or New York or any other state where it’s routinely done at trial. Kennedy even coached the AG with arguments that she ought to have been making, and scolded her when she still didn’t make them.

Justices Kennedy, Scalia and Stevens had little patience for the amicus Assistant S.G., whose argument was that machine-generated reports aren’t testimonial. There’s a difference between an automated record and a computerized document created for the purpose of proving an element of a crime at trial. And they’re different from computerized documents reflecting the observations and conclusions of a human being.

Based on how the oral argument went, we’re going to predict yet another win for the defendant.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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