There’s a great post today on the New York Criminal Defense blog, explaining the history and proper use of the Bill of Particulars in NY criminal practice.  Our readers are encouraged to check it out here.

This has long been a pet peeve of ours.  An astounding number of prosecutors just don’t get the concept of a Bill of Particulars in this state.  And far too few defense attorneys and judges hold the People to their obligations here.

Which is bizarre, because it’s really quite simple.  All the Bill needs to do is specify what facts the People intend to prove which make out the elements of the crimes charged in the indictment, without explaining how the People intend to prove those facts.

For example, a buy-and-bust with stash and cash might have a Bill that states, at such-and-such time and place, “the defendant handed to an undercover police officer two bags containing crack cocaine in exchange for money.  Twenty-four bags containing crack cocaine were recovered from the ground where the defendant threw them.”  That’s all that’s needed.  No mention is required of how the People will prove the stuff is crack, or anything about the money that was recovered, or anything else.

And yet prosecutors keep doing it wrong.  We routinely get Bills of Particular that contain nothing more than bare conclusions of law, such as “the defendant sold crack cocaine to a police officer and possessed crack cocaine with the intent to sell it.”  Or worse than that, just a recitation of the time, date and location, and an assurance that the indictment contains all the information that is needed.

Failure to provide a sufficient Bill renders the indictment defective.  We’re amazed that more defense counsel don’t pursue this aggressively, and educate their judges who may be a little complacent given the lack of rigor by many attorneys.

Once again, we highly recommend this article to our readers.  It was written, by the way, by Jill Paperno of the Monroe County Public Defender’s office, so kudos to Jill.

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).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

- – -

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

This ruling clearly fits that trend.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That’s okay, we just did it for you.

The 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.