If you belong to a certain population, who cares if you get arrested for no reason? Certainly not certain parts of the NYPD, according to former detective Stephen Anderson. If there’s an arrest that needs to be made, and you don’t have a guilty person to arrest, you just “arrest the bodies to it — they’re going to be out of jail tomorrow anyway, nothing is going to happen to them anyway.”
It’s an attitude that is all too prevalent in law enforcement, one that is far too easy to fall into: It’s just no big deal.
Except it is a big deal.
Here’s what happens to you when narcotics officers arrest you for no good reason: You’re forcibly kidnapped, usually in public, in some of the most shaming circumstances imaginable. You’re hauled off in handcuffs, which fucking hurt. You’re fingerprinted, and a rap sheet is created, and unless you are very lucky the fact of this arrest will be part of your official record for the rest of your life. You’re charged with a crime, perhaps a felony. To support the charge, officers like Anderson will provide some real drugs and say they found them on you. Maybe they’ll sit around and try to come up with an incriminating statement they’ll say you “blurted out” on the scene. Faced with overwhelming evidence, you may (more…)
Wanda: What would an intellectual do? What would… Plato do?
Wanda: Pardon me?
Well, no. He probably wouldn’t. Not Plato.
And certainly not in the case of Troy Davis, whose final clemency request was denied this morning, and who now faces execution tomorrow evening for the killing of a police officer in 1989. He was convicted at trial 20 years ago, but since then the reliability of that verdict has been called into serious question. Seven of the nine major witnesses recanted their testimony, many claiming that the police pressured them to give false eyewitness accounts. No forensic evidence ever tied Davis to the crime, the murder weapon was never found. In the intervening years, ten new people have come forward to point the finger at another individual known to have been present at the scene.
So it’s possible that Troy Davis might not have shot the officer. It’s possible that he might have. Twenty years of second-guessing and changing stories make it uncertain. But what is certain is that he was convicted, and that the conviction stands.
Should we be troubled by this?
We started pondering this after our kids’ bedtime story the other night. We were reading to the lads from the Dialogues of Plato [what, you got a problem with that? Shut up, these are not your children.], specifically the Crito. That’s the one where Socrates has been condemned to death, and his friend Crito shows up to talk him into escaping. Boiled down to its essence, the Crito runs something like this: (more…)
“There has been a spate of particularly brutal and senseless attacks on the police,” according to Eugene O’Donnell, professor of police studies at John Jay College of Criminal Justice, and a former police officer and prosecutor. “It seems to me, [there is] an unprecedented level of disrespect and willingness to challenge police officers all over the place.”
What a telling quote. (We’d have missed it, too, if Scott Greenfield hadn’t written about it today. Apparently this was quoted on Fox, and we’ve never gotten around to actually watching or reading Fox News. We get our news mostly from Fark and the WSJ.) We have no data with which to verify the claim that police are getting attacked more often. Nor are we aware of any studies showing an unprecedented level of disrespect for the police. But like all good anecdotal claims, it seems right because it meshes with our own perception — regardless of whether our perception accurately reflects the truth.
In other words, it’s telling not because it is true, but because it feels true.
Perception is everything. Reality has a way of catching up. It’s true of almost every human endeavor except pure math and the most rigorous science. Perception either is truth, or it becomes truth.
And the perception is that people have “an unprecedented level of disrespect” for the police. Accurate or not, it’s fast becoming the truth.
So how come? That’s easy. Disrespect must be earned. People tend not to disrespect others until they’ve been given a reason to. But once respect is lost, it is practically gone forever. Reputation works that way. And when people lose respect for an authority figure, the effect is even worse. There’s a sense of betrayal. A violation of trust. When a trusted authority figure has betrayed that trust, the natural response is not mere disrespect, but hostility.
In recent weeks, there has been talk of more and more people getting arrested for videotaping the police. It’s nothing new — we’ve been reading such stories for several years now, ever since cell phones started being kitted out with video cameras. Still, it’s a topic of the day, and we’ve had a few conversations with people on both sides of the issue. Leaving aside the whole wiretapping issue, however, (a typical explanation for such arrests in states without a one-party-consent rule, though it’s still bogus when the taping is in public and not remotely unlawful eavesdropping), it sure seems like cops are making these arrests because they’re afraid of being made to look bad. Perception matters.
Are they afraid of misperception? Sure. “The camera doesn’t lie,” folks say. But that’s demonstrably false. Look at that famous video of Rodney King getting clubbed by a swarm of cops. It sure looks like he’s getting hit for no good reason, doesn’t it? But the video doesn’t show King going 80 mph through residential neighborhoods after a 100+ mph freeway chase, it doesn’t show King acting like he was flying on PCP when he got out of the car, it doesn’t show him fighting off multiple officers who tried to handcuff him. The video actually shows the cops acting by the book, doing exactly what they were supposed to do — get him on the ground and keep him there. He got hit with batons when he kept trying to get up, and the cops struck him to keep him on the ground. The jury acquitted the cops, because they did it by the book. But there was rioting and mayhem as a result, because the perception was different.
The camera does lie, because it doesn’t tell the whole story. Cops suddenly rushing up on a guy for no apparent reason, frisking him, and arresting him — that looks bad if you didn’t know the guy had sold crack to an undercover a few minutes before. But the camera didn’t catch that. But guess what, that’s still the cops’ problem, and rightly so. Eyewitnesses in the community didn’t see it, either, after all. Is it any wonder why some communities have a strong perception that the cops keep grabbing people for no good reason? Because that’s what they see. Right or wrong, that’s the perception.
And it’s the cops’ job to manage that perception. Nobody else’s.
But the cops have to be afraid of legitimate perceptions, too. The camera does happen to catch a whole lot of real police misconduct. Cops abuse their power all the time. They do lock people up without good reason. They do hit, shoot, tase people without good reason.
This misconduct is nothing knew. There have always been (more…)
“Nathan, when you become mayor, I’m gonna be the first volunteer for your security detail.”
This was a detective speaking, back when we were an ADA in the Manhattan DA’s office. My office, as usual, had about five cops in it. I liked this detective, and asked how come he wanted that job.
“So I can be first in line to put a bullet in your head.”
He was only half kidding.
The reason is because I’d just proposed, in detail, exactly how I would cut out the NYPD’s systematic corruption that caused — and still causes — a great deal of injustice.
Several years have passed, and nothing has changed. The NYPD is still set up to fail. No matter how good its officers may be — and most really are quite good — the NYPD is designed not to serve justice, but to frustrate it.
There are several areas that need fixing. But the single fix that would have the greatest effect would be to end the NYPD’s “collars for dollars” mentality.
The force is structured so that cops wind up getting paid a commission — actually a bounty — for every arrest they make. There’s a huge financial incentive for a cop to make an arrest, and there is zero downside if the arrest turns out to be bullshit. Cops can easily game the system to maximize their pay.
Meanwhile, there’s huge political pressure on each command to “make its numbers” each month. Not quotas, per se, but a sufficient number of arrests to justify the command’s existence to the politicians who (more…)
On Wednesday, President Barack Obama signed into law the 2010 National Defense Authorization Act. As usual, the Act included provisions that had nothing whatsoever to do with National Defense Authorization. And one of the tacked-on provisions was the much-debated Hate Crimes Prevention Act.
We wrote about this back on May 1. It was one of our longer analyses, but our closing paragraphs sum it up fairly succinctly:
In short, we don’t have a legal or constitutional problem with hate crime laws. They actually seem to be a natural extension of our criminal jurisprudence. But [the House version of the bill] seems to have been passed without anyone actually reading it (not surprising, as it hardly spend any time in committee).
An administration and the same-party majority in Congress just want to push a law through, and so they will. And they will wind up passing a law that probably doesn’t mean what they wanted it to mean, and which might not stand up under scrutiny.
So what’s new?
Well, now we have a final version (read it here or in relevant part at the end of this post), codified at 18 U.S.C. §249. So let’s see what the law as passed actually says, whether it means what they wanted it to mean, and whether it might stand up under scrutiny, shall we?
As passed, the Hate Crimes Prevention Act amends the existing Hate Crimes law so that:
1. If you went after your victim because of the (actual or perceived) race, color, religion, national origin, sex, sexual orientation, “gender identity” or disability of any person (not just that of the victim)…
2. And you either hurt them on purpose, or you tried to hurt them with a weapon of some kind…
3. Then your maximum prison sentence gets increased to 10 years.
4. And you can get life if anyone died, if anyone was kidnapped, if there was aggravated sexual abuse, or you even tried to kill/kidnap/sexually abuse.
This is slightly — but only slightly — different from the version originally passed by the House back in the Spring.
To get federal jurisdiction, they need a federal hook. Only race, color, religion and national origin seem to be automatically federal. So the statute has a “crossing state lines” and “interstate commerce” hook for offenses caused by religion, national origin, sex, sexual orientation, gender identity and disability. (Why religion and national origin are included in both sections is beyond us.)
That’s not a huge hurdle, frankly. Interstate travel and interstate commerce are so broadly defined — and have been for generations now — that most crimes are going to fit the bill. If a weapon was used, for example, it had to have been made somewhere, and even if you made it yourself it affected interstate commerce as you didn’t buy one at Wal-Mart.
The Office of Legal Counsel has issued a memorandum saying the Act’s language passes constitutional muster. With respect to the Commerce Clause, we’re inclined to agree. The Commerce Clause may be an absolute mockery as interpreted throughout living memory, but it is what it is, and that’s that.
But isn’t this a thought crime, you ask?
Isn’t this just a second bite at the apple for the government?
Isn’t it already against the law to hurt, kill, shoot, blow up, kidnap, rape, etc.?
Doesn’t it put a greater value on the life of selected victims, as opposed to the rest of us?
Isn’t this the opposite of equal protection of the laws?
How is this just, you ask?
You’re not alone. It seems like this is the one common ground where conservative commentators and criminal defense attorneys seem to agree — they generally hate this law.
We happen to be both conservative and a criminal defense attorney. And yet we can’t help but think this law isn’t such a big deal. It’s really not that objectionable.
In fact, it seems to fit into our jurisprudence quite naturally.
Is this a thought crime? Yes, absolutely. Just like almost every other crime out there.
Crime is something so harmful to society that we restrain the offender’s liberty, take his property, or even take his life. Not every harmful act counts, therefore. We don’t kill people for accidents.
So how do we tell which harmful acts get punished, and which ones don’t?
We look at what the heck you were thinking. For any given act, your punishment will depend entirely on what was going through your mind at the time.
If it was just an accident, then it’s not your fault, and we’re not going to punish you. If you were just a little kid, or severely retarded, or insane, or otherwise can’t be accountable for your actions, then we’re not going to punish you. There’s no point in punishing you.
We’ll punish you a little bit if you should have known better, or you should have been careful. You weren’t trying to do anything wrong, but you should have paid more attention. Your mental state is the key. Your mental state was a little bit culpable, so you get punished a little bit.
We’ll punish you more if you were just being reckless. You weren’t trying to hurt someone, but you knew it could have happened, and you went ahead and did it anyway. Your mental state was more culpable, so you get punished more.
We’ll punish you a lot if you knew it was going to happen. It might not have been your purpose, you weren’t out to hurt someone, you were trying to do something else, but you knew that someone was probably going to get hurt in the process. Your mental state was a lot culpable, so you get punished a lot.
And of course, if you were really trying to hurt someone, and sure enough they got hurt, well then of course you get punished the most.
So all crimes (with limited exceptions for strict liability crimes) are thought crimes.
This hate-crime legislation is nothing more than a new twist on this very old concept. Just like with any other crime, it looks at what you, the perpetrator, thought you were doing. You had a belief about your victim, and because of that belief, you tried to hurt him.
It’s not your mental state about the risk of harm — as all the others are — it is different. It’s your mental state about the nature of your victim.
But that also makes perfect sense, in our jurisprudence.
Throughout our country’s history — from the fights against religious persecution, to the war against slavery, to women’s rights and the civil rights battles of the 1950s — we have come to accept a basic policy: IT IS BAD FOR SOCIETY WHEN PEOPLE ARE MISTREATED BASED ON ATTRIBUTES BEYOND THEIR CONTROL.
That is simply a no-brainer for anyone who loves freedom, individual rights, and equal justice. Americans cannot stand a bully, and will not tolerate those who hurt people for reasons their victims couldn’t help.
Nobody can help what race they happen to be. Nobody can help what religion they happen to have been born into. Nobody gets to choose whether to be born a boy or a girl. Nobody gets to choose what country they happen to have been born in.
Hurting someone because of uncontrollable attributes like these is a clear affront to society. Something we’d typically classify as a crime. It makes perfect sense to define a particular crime of hurting people because of personal attributes beyond their control.
And in recent years, our society has come to accept the fact that other attributes are also beyond our control. Nobody can help how their brains are wired with respect to sexual attraction, it’s inborn. Nobody can help the fact that they’re missing limbs, or are mentally retarded, or otherwise disabled — wouldn’t they if they could?
For our entire lifetime, there has been federal hate-crime legislation. The 1969 law covered race, color, religion, ethnicity and national origin. In later years, we added sex and disability. It makes perfect sense to now expand the already-existing law to include crimes committed against people who happen to be gay, or who were born with a girl’s brain in a boy’s body.
This is not giving extra protections to these people. It is giving extra punishment to those who would hurt someone simply for having been born. Those offenders cause extra harm to society, more than the already grievous harm caused by “ordinary” murders, rapes and assaults. Extra harm to society means extra punishment.
It’s as simple as that.
Here is the relevant text of the bill.
Sec. 249. Hate crime acts
(a) In General-
““`(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR NATIONAL ORIGIN- Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person–
“““““(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and
“““““(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if–
“““““““`(i) death results from the offense; or
“““““““`(ii) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.
““`(2) OFFENSES INVOLVING ACTUAL OR PERCEIVED RELIGION, NATIONAL ORIGIN, GENDER, SEXUAL ORIENTATION, GENDER IDENTITY, OR DISABILITY-
“““““(A) IN GENERAL- Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person–
“““““““`(i) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and
“““““““`(ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if–
“““““““““(I) death results from the offense; or
“““““““““(II) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.
“““““(B) CIRCUMSTANCES DESCRIBED- For purposes of subparagraph (A), the circumstances described in this subparagraph are that–
“““““““`(i) the conduct described in subparagraph (A) occurs during the course of, or as the result of, the travel of the defendant or the victim–
“““““““““(I) across a State line or national border; or
“““““““““(II) using a channel, facility, or instrumentality of interstate or foreign commerce;
“““““““`(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described in subparagraph (A);
“““““““`(iii) in connection with the conduct described in subparagraph (A), the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or
“““““““`(iv) the conduct described in subparagraph (A)–
“““““““““ (I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or
“““““““““(II) otherwise affects interstate or foreign commerce.
““`(3) OFFENSES OCCURRING IN THE SPECIAL MARITIME OR TERRITORIAL JURISDICTION OF THE UNITED STATES- Whoever, within the special maritime or territorial jurisdiction of the United States, engages in conduct described in paragraph (1) or in paragraph (2)(A) (without regard to whether that conduct occurred in a circumstance described in paragraph (2)(B)) shall be subject to the same penalties as prescribed in those paragraphs.
(b) Certification Requirement-
““`(1) IN GENERAL- No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, or a designee, that–
“““““(A) the State does not have jurisdiction;
“““““(B) the State has requested that the Federal Government assume jurisdiction;
“““““(C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or
“““““(D) a prosecution by the United States is in the public interest and necessary to secure substantial justice.
““`(2) RULE OF CONSTRUCTION- Nothing in this subsection shall be construed to limit the authority of Federal officers, or a Federal grand jury, to investigate possible violations of this section.
(c) Definitions- In this section–
““`(1) the term `bodily injury’ has the meaning given such term in section 1365(h)(4) of this title, but does not include solely emotional or psychological harm to the victim;
““`(2) the term `explosive or incendiary device’ has the meaning given such term in section 232 of this title;
““`(3) the term `firearm’ has the meaning given such term in section 921(a) of this title;
““`(4) the term `gender identity’ means actual or perceived gender-related characteristics; and
““`(5) the term `State’ includes the District of Columbia, Puerto Rico, and any other territory or possession of the United States.
(d) Statute of Limitations-
““`(1) OFFENSES NOT RESULTING IN DEATH- Except as provided in paragraph (2), no person shall be prosecuted, tried, or punished for any offense under this section unless the indictment for such offense is found, or the information for such offense is instituted, not later than 7 years after the date on which the offense was committed.
““`(2) DEATH RESULTING OFFENSES- An indictment or information alleging that an offense under this section resulted in death may be found or instituted at any time without limitation.’.
We’ve asked it before, but what the heck is going on with some of these federal prosecutors nowadays? There was the whole Ted Stevens fiasco over the winter, when the feds actively withheld exculpatory evidence and witnesses in their rush to convict the former Senator. Then the 7th Circuit directed an acquittal after the feds blatantly misrepresented the facts in a food labeling case. The W.R. Grace case was screwed by federal prosecutors who withheld exculpatory evidence and gave the judge reason to say he has “no faith in anything the Government says” any more.
And now we get yet another case of the feds blatantly misrepresenting the facts. This time, the 9th Circuit reversed and ordered a new trial, though it’s doubtful that there will be another one.
The case is U.S. v. Reyes, decided this morning. This was one of those options backdating cases that were all over the news for a while back in ’06 and ’07. (“Backdating” is when a company retroactively picks an effective date for stock options, so as to maximize the potential value of those options. It’s a crime when the extra value isn’t accounted for as an expense, because then the books give investors a false image of the company’s finances.)
Gregory Reyes was the CEO of Brocade Communication Systems. In August 2006, Reyes was charged with securities fraud and related crimes for backdating options without properly accounting for them. At trial, his defense was that he had no intent to deceive. He just signed off on the options in good-faith reliance on his company’s Finance Department.
High-ranking Finance Department employees had given statements to the FBI, describing how they knew all about the backdating scheme. But they didn’t testify at trial. Instead, the prosecution called a Finance Department employee who said she didn’t know about the backdating.
The prosecutor was well aware of the fact that others in the department knew all about it. But during closing arguments, he told the jury that the Finance Department employees “don’t have any idea” that backdating was going on.
After several days of jury deliberations, Reyes was convicted. He was sentenced to 21 months in prison with $15 million in fines. That was stayed pending appeal.
This morning, in an opinion byJudge Schroeder, the 9th Circuit held that this was prosecutorial misconduct, and reversed the conviction, ordering a new trial. Reyes argued that he didn’t know the Financial Department wasn’t accounting properly for the backdating, and the feds argued that the Financial Department didn’t know about the backdating. So that was a key question for the jury to decide. And the feds had lied to the jury.
And this wasn’t just a simple little throwaway line, either. The prosecutor did not even limit his argument to the testimony of the witness he’d cherry-picked to give the false impression that nobody in the Finance Department knew about it (which might actually have been permissible). No, the prosecutor:
asserted as fact a proposition that he knew was contradicted by evidence not presented to the jury. In direct contravention of the statements given to the FBI by Finance Department executives that they did know about the backdating, the prosecutor asserted to the jury in closing that the entire Finance Department did not know about the backdating, and further that the government’s theory of the case was that “finance did not know anything.”
“Our theory is that those people didn’t know anything. . . . [The cherry-picked witness] says finance didn’t know. Did you need everybody in the Finance Department to come and tell you that they didn’t know?”
The government even displayed for the jury a diagram explaining the prosecutor’s position that the Finance Department did not know of the backdating. The prosecutor asked the jury to assume other employees of the Finance Department would testify that they did not know about Reyes’ backdating procedure, when the prosecutor knew they did.
Federal prosecutors have “a special duty not to impede the truth.” As the 9th Circuit pointed out today, there is good reason to hold prosecutors to a higher standard: Their words carry the weight and imprimatur of the government itself, which can be very persuasive to a jury.
The 9th Circuit didn’t go so far as to direct an acquittal or dismiss the indictment, because the defense had also played it pretty aggressively. Instead, they ordered a new trial. It is anyone’s guess whether the feds will be up to the task of trying the case all over again, years after the fact. But we’ll go out on a limb and predict that this case will never see a jury again.
For crying out loud, feds! And for shame.
In a perhaps not-all-that-important decision this morning, the Supreme Court overruled a landmark case involving the Sixth Amendment right to counsel. Although it seems like a big deal, today’s decision doesn’t really seem to change anything. Criminal procedure is not likely to change. The upshot is that the police still can’t initiate questioning after you’ve asserted your right to counsel.
Interestingly, both sides probably saw it as a loss. The government clearly lost, no question about that. Technically, the defendant won, as he got the government’s win reversed and remanded. But the defendant lost in his bid to get the Supreme Court to announce a new rule imposing an indelible right to counsel that attaches automatically at arraignment.
* * * * *
In Michigan v. Jackson, 475 U.S. 625 (1986), the Burger Court ruled that police cannot start questioning a defendant after that defendant has appeared in court and requested a lawyer. “If police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.”
This morning, a 5-4 Supreme Court overruled Jackson.
Writing for the majority, Justice Scalia found that the Jackson rule is simply unworkable. And anyway, the existing rule of Edwards v. Arizona, 451 U.S. 477 (1981) already provides the necessary protections, so the Jackson rule is unnecessary in the first place. Scalia summed it up this way:
This case is an exemplar of Justice Jackson’s oft quoted warning that this Court is “forever adding new storeys to the temples of constitutional law, and the temples have a way of collapsing when one storey too many is added.” Douglas v. City of Jeannette, 319 U.S. 157, 181 (1943)(opinion concurring in result). We today remove Michigan v. Jackson‘s fourth storey of prophylaxis.
The defense got the reversal it wanted, but not the rule it sought. The defense didn’t want Jackson overruled — it wanted the case to be interpreted as meaning the police can never seek to interrogate a defendant once counsel is assigned, whether the defendant asked for it or not.
Instead, the Court said we already have “three layers of prophylaxis” that protect defendants here, and we don’t need another one. Under the rules of Miranda, Edwards and Minnick, a defendant can tell the police he doesn’t want to speak to them without a lawyer present, and that shuts down any questioning. And the police cannot re-start it later by trying to Mirandize him again in the hopes that this time he waives the right to counsel. These protections already exist without Jackson, so the overruled case “is simply superfluous.”
The overruling wasn’t really a surprise. Sure, the briefs didn’t really talk about it, but it was strongly hinted at during oral argument back in January. More on that in a minute.
The state of Louisiana clearly lost, and its high court got reversed. But the defense didn’t get the outcome it wanted, and the Court isn’t about to make that rule any time soon, now. The defendant does get a second bite at the apple, however — the defense relied understandably on Jackson and not Edwards in its appeal below, so the Court felt it was best to remand and give the defense the chance to argue based on the Edwards rule.
* * * * *
In today’s case, Montejo v. Louisiana, Jesse Montejo was suspected of the robbery and murder of his former boss. Montejo waived his Miranda rights, and admitted killing the victim during a botched burglary. He indicated that he’d thrown the murder weapon into a lake.
This happened in Louisiana, which requires a preliminary hearing called a “72-hour hearing,” the purpose of which is the appointment of counsel. At that hearing, Montejo was charged with the murder, and the court ordered the appointment of a lawyer. Shortly after the hearing, but before the Indigent Defender was assigned, the police Mirandized Montejo again, and took him out to help them find the murder weapon. During the trip, Montejo wrote a letter of apology to the victim’s widow.
At trial, the letter of apology was admitted into evidence over the defense’s objection. Montejo was convicted and sentenced to death.
Montejo appealed, arguing that Jackson required that the letter be suppressed. The Louisiana Supreme Court said no, the Jackson rule only protects defendants who actually requested a lawyer at the hearing — it doesn’t shield defendants from questioning if, like Montejo, they just stand mute and the court orders the appointment of counsel sua sponte. The court felt that the real issue was whether he’d waived his right to have counsel present during the excursion, and Montejo had done so when he was Mirandized that second time.
Montejo filed for cert, arguing that the right to counsel, guaranteed by the Sixth Amendment, goes into effect upon the appointment of counsel, whether the defendant affirmatively asked for it or not. The other four states which had considered this, as well as the 11th Circuit, had ruled his way. And it made more sense to have a bright-line rule like this than to have a case-by-case analysis to determine whether a defendant said the magic words at arraignment which would grant him the right to counsel. A rule requiring defendants to affirmatively accept the appointment of counsel would simply not be administrable, he argued. One thing the briefs did not request was that Jackson be overruled.
During oral arguments, however, Scalia, Roberts and Alito asked whether the Jackson rule ought to be overruled. They suggested that the rule was overbroad, in that it would not allow defendants to voluntarily waive their Sixth Amendment right to counsel after getting a lawyer.
The state, which had submitted very thin briefs relying largely on dicta, didn’t do well at oral argument. Scalia and Kennedy quickly pointed out the absurdity of requiring “a formality on top of a formality” here, and the state only compounded the absurdity by seeming to suggest that defendants would have to keep requesting counsel every time the police sought to question them after arraignment.
The state also made the classic blunder of arguing with a Justice who had lobbed a softball question, in the attempt to help out the lawyer. Alito and Roberts both offered softballs to get the state to point out that Jackson prevents the police from initiating contact without the presence of counsel, but allows the defendant to initiate discussions. Instead, the state’s lawyer fought them, insisting that Jackson is only supposed to make sure the police don’t “badger” defendants who have a lawyer. The state then made the absurd argument that the Sixth Amendment protections ought to vary from state to state — states that make defendants ask for counsel would have Sixth Amendment protections, but states that appoint counsel whether a defendant asked for it or not would not have Sixth Amendment protections.
* * * * *
Given what happened at oral argument, today’s decision is hardly suprising. Writing for the majority, Scalia said “we agree that the approach taken [by the Louisiana Supreme Court] would lead either to an unworkable standard, or to arbitrary and anomalous distinctions between defendants in different States. Neither would be acceptable.”
Louisiana’s distinction between defendants who assert their right to counsel and those who do not “is extremely hazy when applied to States that appoint counsel absent request from the defendant. . . . How does one affirmatively accept counsel appointed by court order?”
Requiring some sort of questioning at every preliminary hearing would be impractical. Those hearings are typically rushed, aren’t even transcribed in many states, and it would be unworkable to try to monitor each defendant’s reaction to the appointment of counsel, if the defendant is even present (which isn’t always the case). Furthermore, how would the police be expected to know what the defendant’s reaction had been, as they can’t be expected to attend these proceedings. Courts would then have to adjudicate whether the police ought to have been able to approach a defendant, which simply adds to the impossibility. So this solution just could not work.
However, even though the Louisiana Supreme Court’s application of Jackson “is unsound as a practical matter,” Scalia couldn’t go along with Montejo’s proposed rule that, once a defendant is represented by counsel, police would not be allowed to initiate any further interrogation. “Such a rule would be entirely untethered from the original rationale of Jackson.”
What Jackson did was to apply the rule of Edwards v. Arizona, 451 U.S. 477 (1981) to the Sixth Amendment. (Edwards involved a defendant who asked for a lawyer when he was Mirandized, so the police stopped questioning, but then the police tried to Mirandize him again, and this time the defendant confessed. The Edwards rule says the police can’t badger the defendant into waiving his rights after he’s asserted them.) All together, the cases mean that if a defendant asserts his right to counsel, and he later waives that right in a subsequent interaction with the police, then that waiver is presumed to be involuntary.
In a situation like Montejo’s, where the defendant was appointed counsel without ever asking for it, this rule simply doesn’t apply. There was no initial assertion of the right to counsel, so there can be no presumption that a subsequent waiver is involuntary. There is no initial decision that is being changed. There is no indication that the police are overriding the defendant’s free will.
So Montejo’s proposed rule just doesn’t fit with the purpose of the existing law. Instead, it “would prevent police-initiated interrogation entirely once the Sixth Amendment right attaches, at least in those States that appoint counsel promptly without request from the Defendant.”
Instead, wrote Scalia, the existing law we already have under Miranda, Edwards and Minnick is sufficient:
These three layers of prophylaxis are sufficient. Under the Miranda-Edwards-Minnick line of cases (which is not in doubt), a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings. At that point, not only must the immediate contact end, but “badgering” by later requests is prohibited. If that regime suffices to protect the integrity of “a suspect’s voluntary choice not to speak outside his lawyer’s presence” before his arraignment, Cobb, 532 U. S., at 175 (KENNEDY, J., concurring), it is hard to see why it would not also suffice to protect that same choice after arraignment, when Sixth Amendment rights have attached. And if so, then Jackson is simply superfluous.
* * * * *
SO WHAT DOES THIS MEAN?
Here’s a comparison of how the law looked yesterday, and how it looks today:
The right to counsel is triggered…
Yesterday — when you’ve been formally charged, are being interrogated, and now invoke your right to counsel.
Today — when you’ve been formally charged, are being interrogated, and now invoke your right to counsel.
If you invoke your right to counsel…
Yesterday — further discussions are per se excluded, unless you initiate the new contact (Jackson).
Today — further discussions are per se excluded, unless you initiate the new contact (Miranda-Edwards-Minnick).
The other day, by a vote of 249 (59%) to 175 (41%), the U.S. House of Representatives voted to expand the scope of federal “hate crimes” to include crimes against gay people, transgender people, the mentally disabled and the physically disabled. With strong support from the White House and from Senate democrats, we expect to soon see this become law without many changes.
We frankly don’t like hate crimes, but from a jurisprudence perspective there really isn’t any problem with them. More on that below. At the same time, however, this particular bill is problematic. More on that below, as well.
The bill, H.R. 1913 (text here), imposes up to 10 years in prison if you to commit violence because you thought someone was black or gay or whatever. (It also authorizes grants of up to $100,000 per year in federal money to the various state, local and tribal law enforcement agencies. The money is to go towards investigating and prosecuting hate crimes, and programs to reduce the occurrence of hate crimes.)
In the form passed by the house, the hate crimes portion of the law would now do the following:
1. With respect to:
…A. In general.
………1) If you attempt to cause bodily injury to someone, or if you willfully cause such injury, AND
………2) If you did so with fire, a gun, a dangerous weapon, an explosive, or an incendiary, AND
………3) If you did so BECAUSE of the actual or perceived race/color/religion/national origin of the victim, THEN
………4) Your maximum sentence goes up to 10 years.
…B. If someone died or you tried to kill, or you kidnapped or tried to kidnap someone, or you also committed or tried to commit aggravated sexual abuse, THEN
………1) There is no maximum sentence, and you can get anything up to life in prison.
2. With respect to:
National Origin (again),
Gender (I guess they’re referring to biological sex, as opposed to foreign grammar),
Gender Identity, and
…A. In general.
………1) The exact same stuff as above applies, but only if you acted under any of these circumstances:
…………..a) Either you or the victim crossed state lines or a national border.
…………..b) Either you or the victim used an instrument of interstate or foreign commerce.
…………..c) You used a weapon that had traveled in interstate or foreign commerce.
…………..d) Your conduct interferes with the victim’s economic activity.
…………..e) Your conduct otherwise affects interstate or foreign commerce.
Finally, to forestall the criticisms that hate crime laws infringe on First Amendment rights, the statute says it shall not be construed to prohibit any expressive conduct protected by the Constitution. Nor to prohibit any activities protected by the Constitution.
* * * * *
So, what does this mean?
Critics of hate crimes laws, like Rep. Lamar Smith (R-TX), say that such laws undermine the principal of equal justice for all. “Justice will now depend on the race, gender [gah!], sexual orientation, disability or other protected status of the victim,” Smith said during debate. “It will allow different penalties to be imposed for the same crime.” House Republican Leader John Boehner of Ohio said that this “places a higher value on some lives compared to others. That is unconstitutional, and that is wrong. All life was created equally, and all life should be defended equally.”
Such criticisms miss the point, a little bit.
As written, this law does not put greater value on a victim’s life because of their race, sex, religion, or what have you. The victim’s actual status has nothing to do with it. The law doesn’t care if the person actually was black or female or Methodist — it only cares whether the offender thought so.
The focus is not on the victim. It is on the offender’s state of mind. In other words, all this law does is insert a new form of mens rea into criminal jurisprudence.
Mens rea is the legal word for an offender’s state of mind, and is almost always a crucial element of a crime. A harmful act that was committed without the requisite mental state is not going to be a crime. For the most part, society doesn’t want to punish people when they weren’t trying to do something wrong, or when they weren’t breaching any duty to be careful.
The traditional mens rea have coalesced over time into a continuum that looks something like this:
…FAULTLESS. There is no culpability here. You weren’t doing anything wrong, or you can’t be held accountable for your actions. Society doesn’t want to punish you, because it would serve no purpose. It would be mere retaliation, and that’s just not civilized. (Don’t start thinking we’re too evolved, however — we do still have STRICT LIABILITY laws, like statutory rape and certain weapon and drug possession crimes, where society couldn’t care less whether you meant to do it, or even knew that you were doing it. So we still have some holdovers from the old “eye-for-an-eye” days of punishing even mere accidents.)
…NEGLIGENT. This is the lowest level of culpability. You were supposed to be careful, and you weren’t and now someone got hurt. You weren’t trying to do anything wrong, but you did anyway, and you ought not to have. Society wants to punish you for this, but only a little. We want to make sure people are careful when they’re supposed to be. Not paying enough attention while driving, then running over a pedestrian, is a crime of negligence.
…RECKLESS. This is punished somewhat more severely. You knew what you were doing might hurt someone, but you did it anyway. Society wants to punish you more for this, because you were just indifferent to the consequences of your actions. You were putting your own interests above those of the rest of us, and someone could have gotten hurt. Shooting a gun indiscriminately out a window is reckless. Driving so fast that you can’t safely react is reckless.
…KNOWING. This is even more severe. When you were reckless, you disregarded the mere chance that something bad might happen. But when you had a pretty good reason to believe that something bad would happen — even though it’s not what you were mainly trying to accomplish — then society wants to punish you much more. Let’s say you caught your spouse cheating on you, so that Saturday night you cut their brake lines. You’re trying to kill your spouse when they take their mother to church the next morning. The resulting accident kills your mother-in-law as well. You weren’t trying to kill her, but you knew she could die as well.
…PURPOSE. This is the most severe. You were actually trying to do it. Society punishes intent the most severely of all, as it’s the most culpable of the mental states. When you severed your spouse’s brake lines in the example above, you intended to kill your spouse.
There are other mens rea out there, which sort of come at this continuum from right angles. ATTEMPT is the big one. It’s a form of intent, of purpose, but it slips in between each of the standard categories. You were trying to commit a crime, but for whatever reason it failed. If you tried to shoot a gun randomly out the window, but it jammed, you’re guilty of an attempted crime of recklessness — you intended to commit a crime with a reckless state of mind. If you tried to purposely shoot someone, but the gun jammed, you’re guilty of attempted murder, attempting to commit a crime with an intentional state of mind. Attempts aren’t punished as severely, because the state of mind is not the only reason for enhanced punishment — the events themselves also play a part in determining culpability (a fact that some on the Supreme Court seem to have forgotten).
So all “hate crimes” laws like this one do is define a new mens rea. This one does not fall within the standard continuum, however. It does not care so much whether you were negligent, reckless, knowing or purposeful. It only cares what you believed to be true of the victim, and that you acted because of that belief.
This really doesn’t even come at the continuum from right angles. It’s wholly separate and apart. It’s a one-off. It’s not even on the same piece of paper. It’s a new kind of mens rea, because it has less to do with your mental state with respect to your actions, and more to do with the reasons why you’re committing them in the first place.
But does that make this new mens rea improper? Not really. It just so happens that, over the past couple hundred years, our national culture has gradually come to consider harmful — actually harmful to society — mistreating people based on attributes beyond their control. People can’t help what color they are, or where they were born, or what religion they were raised in, or what turns them on, or whether they have Down syndrome. Mistreating them because of such things is, to modern eyes, harmful to society.
Society punishes harm to itself by criminalizing it. So it’s a simple step to criminalize mistreating people because you thought they possessed certain attributes beyond their control. That belief, the reason for the criminal act, is just a new form of mens rea, and a harmless one at that.
* * * * *
However, just because we don’t have a problem the concept of this hate crime law, that doesn’t mean we think it is a good one. In fact, there are significant problems with it.
For example, there is a real vagueness with respect to religion and national origin. On the one hand, they’re the same as race, and don’t require additional circumstances. On the other hand, they are grouped in with the new categories requiring additional circumstances. It has to be one or the other, and this vagueness could make hate crimes based on religion and national origin void, under the Rule of Lenity.
Of course, the Commerce-Clause-related circumstances could make this merely a distinction without a difference. But if it there was no difference, then why did Congress go to the effort of writing those conditions for certain victims, but not for others? A savvy defense attorney might well argue that these particular hate crimes are unenforceable.
In addition to this unnecessary vagueness, the law is also overbroad.
Let’s back up. The policy underlying this (and pretty much any other American law against discriminatory behavior) is that we don’t want people being singled out for mistreatment for reasons they have no control over. Again, people can’t help what race they are, so it’s bad to mistreat them for it. It now seems pretty clear that people can’t help what their sexual proclivities happen to be, so it’s bad to mistreat them for that as well.
But there are sexual proclivities that society still wants to punish. There are those who can only get sexual gratification from acts involving children. For the most part, they can’t help this, which is why they usually cannot be rehabilitated. So we have two competing interests here: society’s desire to protect those who can’t help being the way they are, and society’s desire to protect children from sexual predation. It should be obvious to most who read this what the policy ought to be on this. But this law doesn’t go there.
So you could have a situation where a father catches a sexual predator making moves on his young child, and beats him severely with a metal baseball bat. The act was committed primarily because of what the victim was, and it was based on his sexual orientation, so now the father is facing prosecution for a hate crime in addition to the assault.
Or you could have a religion whose believers are sworn to kill all redheads on sight. You happen to be a redhead, and members of that religion just established a temple down the street from your house. You willfully torch the temple, and someone gets hurt. Now, in addition to the arson, you’re looking at a hate crime.
These are extreme examples, to be sure. It’s not something that’s likely to happen. It merely shows that the law is inartfully written, and that it is conceivable that it could therefore be applied in ways that were not contemplated by Congress. These merely illustrate that the law could serve to protect those whom the law does not wish to protect, and penalize those whom the law did not wish to penalize.
These examples also raise a policy question as to defenses. In the first, the father could raise a defense of temporary insanity to challenge the assault claim. In the second, the arson might be challenged with perhaps a Bush-doctrine preemptive self-defense.
But is there room for such defenses in this law, the way it’s written? Temporary insanity is a defense to mens rea. It posits that the necessary mental state did not exist, because circumstances were such that the offender could not have been thinking that way. But here, the temporary insanity would be proof that the necessary mens rea did exist. It’s the result of the knowledge that the victim was a sex offender, and tends to show that the violence was inflicted because of it.
* * * * *
In short, we don’t have a legal or constitutional problem with hate crime laws. They actually seem to be a natural extension of our criminal jurisprudence. But this one seems to have been passed without anyone actually reading it (not surprising, as it hardly spend any time in committee).
An administration and the same-party majority in Congress just want to push a law through, and so they will. And they will wind up passing a law that probably doesn’t mean what they wanted it to mean, and which might not stand up under scrutiny.
So what’s new?
The Supreme Court this morning exemplified exactly what’s wrong with the death penalty in this country. In a clear effort to avoid a decision that would impose a death sentence, the Court made a nonsense ruling so it could extend the course of appeals — appeals that have already run for three decades. The Court further delayed an outcome, continuing the stress and injustice of uncertainty to the defendant, the victims, and the criminal justice system.
One Saturday afternoon in 1980, Gary Cone robbed a Memphis jewelry store of about $112,000 worth of trinkets. He led a police officer on a high-speed chase through town and into a residential neighborhood. Abandoning his car, he ran off on foot. He shot a police officer who pursued him, and a citizen who tried to stop him. Re-thinking his abandonment of the getaway car, he tried his hand at carjacking, tried to shoot the driver, but was out of ammo.
Cone ran and hid all that day and into the next morning. He then tried to force his way into an old lady’s apartment at gunpoint, but she refused to let him in. The highly-intelligent Vietnam War veteran was foiled again. But later that Sunday afternoon, he broke into the home of an elderly couple, Shipley and Cleopatra Todd, aged 93 and 79, and brutally beat them to death.
After hiding the bodies, ransacking their home, and shaving off his beard, he made his way to Florida. There, he robbed a drugstore, got arrested, and admitted to killing the Todds and shooting the police officer.
In 1982, he was convicted of the murders, after unsuccessfully arguing that he had been on drugs and suffered from post-traumatic stress, and thus lacked the necessary mens rea. He didn’t really present a lot of evidence to back that up. The jury found him guilty, found the requisite aggravating factors, and sentenced him to death.
In yet another bleak example of modern American capital punishment, Cone spent the next 27 years filing appeal after appeal, up to the Supreme Court and back again.
This morning, the Supreme Court ruled on his federal habeas claim. Cone was arguing that the government violated his Brady rights, by withholding evidence material to his mental state.
On direct review in state court, the Tennessee Supreme Court had affirmed the conviction and the death sentence. Cone then filed a petition claiming various violations, including Brady violations. While the petition was pending, he got to see the prosecutor’s case file, and amended his petition to add more detailed Brady claims. He claimed that his thin evidence at trial would have been bolstered by this stuff, had he seen it at the time.
The reviewing court denied the petition, on the grounds that the Brady claims had already been considered and denied. Cone then sought a writ of habeas corpus, seeking relief for the alleged Brady violation. The Sixth Circuit said no to the Brady claim, because the state decision was based on grounds that weren’t applicable in federal court.
Appeals then went back and forth on other matters. In 2001, the Circuit granted relief for ineffective assistance of counsel, but the Supreme Court reversed that in 2002. In 2004, the Circuit granted relief for the use of an unconstitutional aggravating factor, but the Supreme Court reversed that one also.
Back in the Sixth Circuit in 2007 on remand, Cone once again raised the Brady claim. The Circuit again said no, that the claim was procedurally barred, because Tennessee had relied on independent state grounds in its determination of the Brady claim. And in any event, the prosecutor’s files weren’t Brady material in the first place, because nothing in them would have “overcome the overwhelming evidence of Cone’s guilt” and “the persuasive testimony that Cone was not under the influence of drugs.”
On cert to the Supreme Court this time around, Cone argued that the prosecutor’s file contained witness statements and police reports that would have corroborated his insanity defense during the guilt phase, and would have mitigated the aggravating factors during the sentencing phase. He argued that the Tennessee court’s decision did not rest on grounds that precluded federal review, contrary to the Circuit’s finding.
In its decision this morning, written for the majority by Justice Stevens, the Supreme Court ruled in Cone v. Bell that Cone was right — the Tennessee court’s decision did not rest on grounds that precluded federal review. Nevertheless, Cone was still wrong, because the prosecution’s files were not Brady material — the withheld documents simply were not material to any defense based on his mental state.
If Stevens had stopped there, this would have been a unanimous decision.
Instead, however, Stevens screwed up. “While we agree that the withheld documents were not material to the question whether Cone committed murder with the requisite mental state,” he wrote, “the lower courts failed to adequately consider whether that same evidence was material to Cone’s sentence.”
Say what? It clearly wasn’t material to the issue of guilt, but the appellate courts were too hasty in saying it was not material for sentencing? Stevens is basically saying, the files weren’t Brady, because they weren’t material to the issue of his mental state. But on the other hand, they might have been material to the issue of his mental state, so we’re remanding for a do-over.
So, in all these years of considering this very issue on appeal, the Circuit got it right when it decided that the files simply weren’t material. But in all these years of considering this very issue, the Circuit acted too hastily in deciding that the files weren’t material.
That simply doesn’t make sense, and in his dissent (joined by Scalia), Thomas makes that exact point. Alito felt the same way, and dissented to that extent, but concurred with the rest of the decision.
Chief Justice Roberts felt the same way, but wasn’t moved strongly enough to dissent, so he merely wrote a concurring opinion voicing his concerns. Instead, “this is what we are left with,” he wrote: “a fact-specific determination, under the established legal standard, viewing the unique facts in favor of the defendant, that the Brady claim fails with respect to guilt, but might have merit as to sentencing. In light of all this, I see no reason to quarrel with the Court’s ruling on the Brady claim.
That’s just weak. He and the rest of the majority clearly punted the issue. There is no distinguishing difference between the guilt phase or the sentencing phase, when determining whether something was Brady or not. Either it’s material or it isn’t. The issue in both was whether Cone’s mental state was impaired, and the courts seem to agree that the files were immaterial to that issue.
It’s clear what’s really going on, of course: the majority didn’t want to suck it up and just deny the claim. To do so would be to impose a death sentence, and the Stevens majority doesn’t want to do that unless there’s no way out for them. But they found a way out here. Not a particularly meaningful one, but it was all they needed. So they weaseled out of it, and kicked it back to the Sixth Circuit to do their dirty work for them.
We predict that the Circuit will simply make the same finding again on remand, and spill some more ink to spell out that its finding applies to both the sentencing phase as well as the guilt phase. Then today’s majority will be able to feel a little better about themselves when they affirm, and sentence Cone to death.
But delaying this foregone conclusion is unjust. It’s exactly what’s wrong with capital punishment in this country. There is no deterrent effect, because there is no predictability as to whether capital punishment will be carried out, and any such punishment is too far off in the dim and distant future to be meaningful. There is clearly no rehabilitation or attempt to rehabilitate, as the alternative is just life in prison. There is no just retribution, as society does not gain anything from punishment that neither certain nor contemporaneous.
Until the courts can work out a fair way of resolving death-penalty appeals justly and swiftly, the death penalty will continue to be an inhumane sentence in this country. Inhumane not only to defendants, but to the families of their victims, and to the community at large.
Although juries have existed in one form or another since ancient times, the jury as we now know it originated in 12th-century England. At first an accusatory formality, the jury evolved into a check on governmental power. Nowadays, an accused’s right to have the evidence against him judged by members of his community is one of the most essential requisites of criminal justice. Juries also ensure a public perception that the system is just — a necessary precondition for the system to actually work.
But justice requires that juries actually make a decision. And new statistics show that they’re refusing to in ever increasing numbers.
When someone is accused of a crime, the law prescribes certain actions that can be taken by the justice system. It’s so formulaic that much of it could be done by a computer: if the defendant did X, Y and Z, then he goes to prison; if he only did X and Z, he gets probation; if he only did X, then he does not get punished. But before the law can be applied to the facts, the law needs an official version of the facts. We need it so we can move on to the next step, so defendants and victims and witnesses can get on with their lives. A computer can’t do that. It is the job of real people, the jury, to define that official version of the facts.
If a jury refuses to make a decision, justice is delayed. The accused must suffer continued anxiety and uncertainty until another trial closes this distressing chapter in his life. He must double down on the expense of defending himself, and on the stress it puts him and his family through. Victims and witnesses have to go through the trauma of testifying all over again. Another pool of jurors has to take time out of their lives.
But modern sensitivities have made the hung jury ever more commonplace. We’re not supposed to be judgmental. For decades, ethical relativism and cultural sensitivity have been a major part of our socialization. Gen-X kids like me, taught to be politically correct in college, are now entering middle age. The Millennials now entering the workforce have learned these sensibilities since birth, and for many it is viscerally wrong to pass judgment on another. This oversimplifies the matter, of course, but the fact remains that a huge portion of the population now feels significantly more uncomfortable in the role of juror.
These same generations had parents, teachers and professors who lauded the civil rights protests of the 1950s and the antiwar protests of the 1960s. Now they are more likely to use their jury service as a protest — they don’t care what the facts are, they have an agenda in conflict with their role as jurors. Maybe they simply don’t want to put another young black man in jail, and further decimate their community. Maybe they simply want to use their jury service as a vague protest against an oppressive system. We’ve seen plenty of those kinds of jurors, too.
The results have been dramatic in recent years, as the numbers of hung juries have skyrocketed. In the birthplace of the modern jury, the BBC reports that hung juries increased 30.7% in 2007, and a whopping 70.6% in 2008.
Still, this isn’t cause for alarm. Careful jury selection can often identify people who simply cannot pass judgment, as well as those who have a political agenda. Lawyers and judges can use voir dire to educate jurors about the importance of their role, so that they overcome their discomfort and do their job.
Alarmists want to prevent hung juries by allowing majority verdicts in criminal trials. If a holdout is holding up justice, reformers would negate that holdout’s influence, and let a vote of 10 out of 12 be sufficient (as it already is in England). But that is an end run around justice — the principled holdout who refuses to give in to pressure is an iconic figure in public perception. Norman Rockwell painted it, for crying out loud.
No, we’re going to have to play the hand we’re dealt. If the venire is more likely to harbor holdouts, we are just going to have to do a better job of getting across to them, or weeding them out. The jury is the democratic participation of the community in the administration of justice, a system better adapted than any other to the protection of the individual against oppression by the state. As Lord Devlin said, a tyrant cannot rise unless he “overthrow or diminish trial by jury.”
The Supreme Court ruled today that defense attorneys assigned by the state are not government actors, merely because the government assigns and pays them. They are attorneys for the defendant, and their actions are actions of the defense, not the government.
This seems like a no-brainer. Every defense attorney knows that his obligations are to his client, regardless of who is paying the bill. But apparently the Vermont Supreme Court needed to be reminded of this fact by a 7-2 decision of the Supreme Court.
Michael Brillon was arrested in 2001, and had at least six different lawyers over the next three years, before finally being convicted after a jury trial and sentenced to 12-20 years. Before trial, Brillon moved to dismiss for speedy trial violations.
The trial court said the delay was caused by Brillon, and denied the motion. The Vermont Supreme Court reversed, saying that at least two of the three years should be charged against the state, because those delays were caused court-appointed defense attorneys. The remaining year, where delays were caused by retained counsel for the defense, was not chargeable against the state.
Writing for the majority in Vermont v. Brillon, Justice Ginsburg stated that the Vermont Supreme Court’s error was in thinking that assigned counsel are state actors in the criminal justice system. Assigned counsel, just like retained counsel, act on behalf of their clients, so delays they seek are ordinarily attributable to the defense.
The Vermont court had tried to assess whether the delay was to be blamed more on the government or on the defense. Because assigned counsel were paid by the government, Vermont felt that they were government actors, so their delay should be charged to the government. But the Supreme Court was obliged to point out that an attorney is the defendant’s agent, regardless of whether the attorney is privately retained or publicly assigned.
This is such a fundamental point, it is amazing that it got this far. Justice Ginsburg took the time to explain that Vermont’s error was such a fundamental misapplication of Barker v. Wingo that the Supreme Court had to step in to correct it.
Justice Ginsburg did leave open the possibility for public defender delays to be chargeable against the state, but only when such delays are caused by a “systemic breakdown” in the public defender system, some sort of institutional problem actually attributable to the government. That wasn’t the case here.
Justices Breyer wrote a very interesting dissent, in which Justice Stevens joined, highlighting some of the unspoken realities of how the Supreme Court works. They did not disagree with the ruling itself, but rather believed that certiorari had been improvidently granted. The issues turned out to be not as clearly defined as originally presented, and there were ambiguities in the Vermont Supreme Court’s decision, so that it did not necessarily misapply Barker v. Wingo unless one wanted to read it that way. Justice Breyer basically said the Court accepted and decided this case because the majority justices wanted to, so very badly.
Here in Manhattan, we like to brag that we’ve got the busiest courthouse in the world. But at least the system can handle it. According to Tuesday report from the chief justice of the New Delhi High Court, however, the courts in India are all just as busy, but the system is so broken that they just can’t handle it.
The Delhi High Court, which has jurisdiction over civil, criminal and constitutional matters, is so overwhelmed that the chief justice estimates it could take 466 years just to wade through the 2,300 criminal appeals waiting to be heard.
The reasons for the backlog are not complicated. India’s justice system has a longstanding reputation for “corruption, inefficiency and lack of accountability,” according to this AP report, “often making the rule of law unattainable for all but the wealthy and the well-connected.”
Corruption and unaccountability are enough on their own to doom any judicial system. They destroy the perception of justice. And in the realm of justice, as in the worlds of finance and politics, perception is reality. If people think that crimes are not efficiently, consistently and fairly punished — whether truly so or not — then punishment loses its deterrent effect. If people think that the law does not consistently and fairly protect rights and interests — whether it does or not — then the law may as well not exist, and the rule of law becomes a joke.
As prominent New Delhi lawyer Prashant Bhushan puts it, India “only lives under the illusion that there is a judicial system.” Bribing judges, he adds, is commonplace: “It’s a lucrative business.”
And it doesn’t look like anything can be done about it, at least not in the short term. Corruption is a commonplace of Indian society, says retired Supreme Court justice J.S. Verma, so “of course corruption is there. The people who man the courts and the court system come from the society.”
On top of the systemic failure of the rule of law, the courts are under an enormous administrative burden as well. There are only 11 judges for every million people — there are ten times as many in the U.S.
The administrative burden is exasperated by the bureaucracy, which slows down the legal process with overstrict formalities and procedures that can overwhelm a layperson.
The administrative burden can be met by shifting resources to the judicial system, and by eliminating bureaucratic time wasters. Political decisions only. But of course that would only happen if the government wanted to do so. That’s a tall order when the ruling classes are the beneficiaries of the present state of affairs.
First, a recap: Last July, former Alaska Senator Ted Stevens was indicted on seven counts of failing to report gifts he’d received, including renovations to his house in excess of what he’d paid for, but mostly goods and services from oil tycoon Bill Allen. Sen. Stevens pled not guilty, and with an election coming up he demanded a speedy trial to clear his name. The trial began on September 25.
Soon after the trial began in Washington, D.C, the prosecutors came under fire for sending one of their witnesses home to Alaska without letting the judge or the defense know. The witness, Rocky Williams, then contacted the defense team and told them that he’d spent a lot less time working on Stevens’ home than the renovation company’s records indicated. That severely weakened the prosecution’s argument that the company had spent its own money doing the renovations.
Then it came out that the government had withheld Brady material. FBI records containing prior statements of a witness had been handed over to the defense, but the prosecutors — Brenda Morris, Nicholas Marsh and Joseph Bottini (pictured) — had redacted parts of the statements that were potentially exculpatory. This wasn’t affirmatively exculpatory material, but it was impeachment material, and should have been turned over.
A memo from Bill Allen was discovered during trial, in which Allen stated that Sen. Stevens probably would have paid for the goods and services, had he been asked to. The prosecution claimed that their failure to disclose it beforehand was an inadvertent oversight.
The judge was reportedly angered by all this, stating with respect to the Brady material that “it strikes me that this was probably intentional. I find it unbelievable that this was just an error.” Nevertheless, the judge did not declare a mistrial, and on October 27 the jury convicted Stevens on all seven counts.
Then in late December, FBI agent Chad Joy went public with the accusation that the prosecutors really had intentionally withheld exculpatory evidence, and had intentionally sent Rocky Williams back to Alaska to conceal him from the defense.
Now, as the New York Times reports, Joy has come forward with additional allegations of prosecutorial misconduct.
In his latest whistleblower filing, Joy claims that another FBI agent conspired with the prosecutors “to improperly conceal evidence from the court and the defense,” as the Times puts it.
“I have witnessed or learned of serious violations of policy, rules and procedures, as well as possible criminal violations,” Joy stated in his affidavit.
With respect to Rocky Williams, Joy stated that the witness was sent back to Alaska not because of ill health (the reason given by the prosecution), but because after preparing him for testimony, the prosecutors decided that his testimony would help the defense case. Joy stated that Nicholas Marsh came up with the idea, after Williams fared poorly in a mock cross-examination.
Joy stated that the prosecution team also tried to hide the Bill Allen memo that stated that Sen. Stevens would have paid for the items if he’d been asked to. Rather than an accident, as prosecutors claimed at trial, Joy now alleges that it was intentionally withheld.
In addition, Joy claims that fellow FBI agent Mary Beth Kepner had an inappropriate relationship with the star witness, Bill Allen. She almost always wore pants, he said, but on the day that Bill Allen testified, Joy says she wore a skirt, which she described as “a present” to Allen. Joy also states that Kepner went alone to Allen’s hotel room. Although Joy’s redacted affidavit doesn’t say it specifically, the defense team now claims that Kepner and Allen appear to have had a sexual relationship.
Joy also claims that FBI agents received gifts from Allen, including help getting a job for a relative.
The judge, Emmet Sullivan, has ordered a hearing to be held in two days, this Friday the 13th, on whether a new trial is warranted. If the judge determines that Sen. Stevens did not receive a fair trial, he could very well scrap the conviction and order a do-over. It would be anyone’s guess, at that point, as to whether the prosecutors would actually try the case again.
Watch this space for future developments.
The Bill of Rights, notably Amendments 4-6, protects accused individuals from improper action by the police. The typical remedy for police violation of these rights is suppression of the evidence that would not have been gathered but for the violation. This Exclusionary Rule protects the justice system, by ensuring that the maximum lawfully-gathered evidence is available, while ensuring that defendants aren’t prosecuted with unlawfully-gathered evidence. Police officers and departments are not punished for violations, because that would create an incentive to avoid borderline situations where evidence could have been obtained lawfully. Rather than do that, the Exclusionary Rule lets officers go right up to the line of what they’re allowed to do, and only takes away what they shouldn’t have been allowed to get.
The Exclusionary Rule is not an individual right, but is rather a remedy that has been crafted over generations of thoughtful jurisprudence. It simultaneously maximizes protection of the individual’s rights, and society’s interest in law enforcement. It balances two powerful and competing interests, and it does the job elegantly. As such, it is a beautiful rule, but one that is nevertheless criticized — both by law-and-order types and by defendant-rights types — when its role is misunderstood. Unfortunately, it is misunderstood all the time.
So it was no surprise to see plenty of misunderstanding of the Exclusionary Rule in yesterday’s Supreme Court decision in Herring v. United States (No. 07-513). Split 5-4 (and with delightful sniping in the footnotes), the justices on either side of the ruling tried to clarify what the Exclusionary Rule means, but only demonstrated that they’re missing the point. All of them. In their attempt to clarify the rule, all they did was muddy the waters.
That’s right, we just said that we understand the Exclusionary Rule better than the Supreme Court. Modesty is not our strong suit.
The Herring case arose in Coffee County, Alabama. Bennie Dean Herring was someone who’d had his share of run-ins with law enforcement over the years. His truck was impounded, and he went to the Sheriff’s Department to get something out of it. When one of the Sheriff’s investigators found out, he had the Coffee County warrant clerk check to see if Herring had any outstanding warrants. There weren’t any in Coffee County. Then they called neighboring Dale County to check. The Dale County computers showed an active arrest warrant for failing to show up in court on a felony charge. Based on that information, the Coffee County officer pulled Herring over as he left the impound lot, arrested him, and recovered methamphetamines and an illegal gun.
In the meantime, the Dale County warrant clerk went to get a copy of the warrant, to send to the Coffee County officer. But there wasn’t one in the file. So the clerk checked with the court, and found out that the warrant had been recalled. For whatever reason, the information never got from the Dale County court to the Dale County warrant database. The warrant clerk called the Coffee County warrant clerk immediately, and the warrant clerk immediately called the officer, but the arrest and search had already taken place.
At trial, Herring moved to suppress the evidence on the ground that the arrest was illegal, as the warrant it was based on no longer existed. The trial court said the evidence was admissible, because the officer did nothing wrong, and acted in good faith on information that the warrant was still outstanding.
On appeal, the Eleventh Circuit agreed that the Coffee County officer did nothing wrong. Any error was independent of that officer. The error was the result of negligence on someone else’s part, and was moreover a negligent inaction rather than some government action. The Circuit therefore held that the negligence was so attenuated from the officer’s actions that any benefit to be gained by suppression, and so the evidence was admissible under the “good faith” rule of U.S. v. Leon, 468 U.S. 897 (1984).
Writing for the majority, Chief Justice Roberts pointed out that, even if the search or arrest was unreasonable, the Exclusionary Rule doesn’t always apply. It’s a last resort only. He reiterated that exclusion is not a right of the individual, but is instead a deterrent. The benefits of a deterrent must be weighed against its costs.
Thus, when police have acted in “objectively reasonable” reliance on a warrant that was later held to be invalid, or on a statute that was later declared unconstitutional, or on a court (not police) database that mistakenly stated that an arrest warrant was outstanding, the Supreme Court has held that the evidence was admissible under the “good faith” rule. The Court had held that evidence should be suppressed only when the officer knew or should have known that the search was unconstitutional. Illinois v. Krull, 480 U.S. 340 (1987).
“Objectively reasonable” (or “good faith”) means “a reasonably well-trained officer would have known that the search was illegal, in light of all the circumstances.” It’s not a subjective test of what the officer actually intended, but rather a test of what he should have known. Here, there was no reason to believe that the Coffee County officer wasn’t being objectively reasonable in relying on the information from Dale County’s warrant clerk. So the officer did nothing requiring suppression.
The underlying error didn’t require suppression, either. Here, the clerical error wasn’t the result of a recklessly-maintained system. Nor was it the result of the police planting false information for the purpose of justifying false arrests later on. The kind of clerical error here is not something that the Exclusionary Rule could affect or deter meaningfully.
Roberts concluded by saying “we conclude that when police mistakes are the result of negligence such as that described here, rather than a systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way.’ In such a case, the criminal should not ‘go free because the constable has blundered.’”
In this opinion, Roberts’ reasoning was certainly sound. However, he amplified the erroneous viewpoint that the proper policy purpose of the Exclusionary Rule is to deter future misconduct. The policy is categorically not to deter. Deterrence is a purpose of punishment, and this is not a rule of punishment. Deterrence gives the police an incentive not to approach the line of impermissibility. That is precisely what the Rule is designed to avoid.
The Exclusionary Rule is not a rule of deterrence or of punishment, but is instead a rule of balancing — balancing individual rights with society’s interests in law enforcement. Roberts does get the concept, as in his discussions of balancing marginal utility against cost. But his repetition of the “deterrence” fallacy just confuses an otherwise clear argument.
Justice Ginsberg similarly the Exclusionary Rule in her dissent (joined by Justices Stevens, Souter and Breyer). Like Roberts, Ginsberg says the purpose is deterrence. But she goes even further to say that the Rule should be used to deter practically all police error.
This is a much more expansive purpose for the Exclusionary Rule (or as Ginsberg puts it, “a more majestic conception”). She goes so far as to say that any arrest based on carelessly-maintained database information would be unlawful, and would require suppression.
If the Rule were to be used as a deterrent, Ginsberg does make an argument that its marginal utility even in cases of carelessness, like this one, is sufficient to justify its use. Suppressing evidence could very well lead to reforms in the data management, to ensure that the same mistake doesn’t happen again. But exclusion is not the only means to that end, and is not even a very suitable means, as there is no actual pressure on the record-keepers to change their ways. The more effective means would be pressure from police leadership and political superiors to fix the process. Also, exclusion of evidence in County A is hardly likely to influence behavior in County B.
Justice Breyer issued his own dissent, joined by Justice Souter. In it, he makes the same error of ascribing deterrent purposes to the Exclusionary Rule, rather than the purpose of balancing interests. And as a result, he falls into the same trap of reasoning as Ginsberg.
Breyer wants a bright-line rule. Because of his focus on deterrence, he would draw the line between the police and the courts — if the error was made by court personnel, then they are not going to be deterred by suppression, so the Exclusionary Rule should not apply. But if the error was made by any police personnel, then the Rule should apply. Breyer fails to explain, however, how police database clerics are in any way deterred from negligent error by the suppression of evidence seized as a result of such error. He similarly fails to explain how court clerks are somehow different, so that they could not have been so deterred by suppression.
Ginsberg and Breyer’s arguments fall apart because they’re looking at suppression as a punishment, a deterrent, rather than as the result of a balancing of competing interests. Roberts gets it, but he too makes the same mistake to some degree. This decision seems to have muddied the waters, instead of clarifying the rule.
Oh well, better luck next time guys!