Posts Tagged ‘supreme court’

A Tiny Bit More on Qualified Immunity

Thursday, February 11th, 2016

Last summer, I made a little ‘splainer for the Washington Post briefly explaining how Qualified Immunity works (and doesn’t). [Link] This afternoon, a very nice reporter reached out to me for some followup. She’s doing a longer piece on QI, and had some questions specifically about the Supreme Court’s jurisprudence here. I dashed off a quick email response — by which I mean one that I didn’t take the time to tighten up. But re-reading it, I get the feeling that with a bit of research, some fleshing out of ideas, it might have the beginnings of a halfway decent law review article. (There are so many I want to write.)

But I don’t have time to write one now. And my email was too long for there to be any likelihood of it getting quoted in full, if at all. So I figured I’d share it here and give you all a chance to tell me exactly what I got wrong. And then when I do get around to writing that article… never mind. Here’s the copypasta:

Questions:

1.      I recently spoke with a con law scholar who said the Supreme Court is “fascinated” with the topic and takes cases that don’t even seem that important. What do you think?

2.      Recent Supreme Court  decisions on the topic are generally summary reversals of circuit court decisions denying qualified immunity. Why do you think the Court isn’t issuing more merits decisions?

3.      Although the Court says it doesn’t correct errors in individual cases, they seem to be doing that in this area. Please comment.

4.      Regarding the circuit courts, do you have any statistics (or a resource) about which ones consistently deny qualified immunity?

5.      The Court repeatedly finds that there isn’t “clearly established” law to deny qualified immunity but it doesn’t issue further guidance on what clearly established law is. Why do you think this is?

Response:

1, 2, 3, and 5 are related. I don’t have anything to offer for #4, sadly.

First, a little background. After §1983 was passed in 1871, it didn’t have the same meaning and scope that it does today. Not until the 1961 Supreme Court decision of Monroe v. Pope, which really gave new life to the statute. During the 1960s and 1970s, the Court expanded the statute’s applicability and made it easier to sue a state actor in federal court. By the end of the 1970s, §1983 had become the go-to statute for civil rights lawsuits.

But starting in the 1980s, the Court had a change of heart. Now it seemed focused on undercutting the scope and effect of §1983. For example, civil rights lawsuits are basically torts — constitutional torts — but the Court replaced tort standards of culpability with newer, harder standards of the Court’s own devising. Similarly, the Court decided that some things like false imprisonment and slander wouldn’t count as civil rights violations for §1983 purposes, so you’d have to sue under state tort law for those kinds of wrongs.

Among the limitations it added were newfangled ideas of “immunity” from being sued. In other words the government officials §1983 apparently let you sue couldn’t be sued. Judges and prosecutors got absolute immunity in the late 1970s, but Qualified Immunity for other officials wouldn’t be added until the mid-1980s.

The problem was, the Supreme Court made up Qualified Immunity out of whole cloth. They tried to find an existing legal principle to justify it, but when the law was enacted in 1871 there really wasn’t one. So they invented it. Instead of basing it on legal principles, they based it on “policy” principles, which translates to “what we think is best.”

That’s a problem. When the Court replaces what the law is with what it thinks the law ought to do, things get really messy. Cases get decided based on the desired outcome, rather than on the application of a consistent and predictable legal standard. When you see confusing, inconsistent, or irreconcilable lines of cases, this is often the explanation. The rulings meander because they’re rudderless.

Before the 1980s were out, the Court’s jurisprudence on Qualified Immunity was already confusing, and it was going through some real contortions to craft decisions that got the desired results.

I think that’s why they started acting like you suggest in 1, 2, 3, and 5. It got to be too much. The Court wanted outcomes, but was unwilling to go through the gymnastics necessary to justify those outcomes. Merits decisions require some reasoning, and also create precedent. Better to issue summary reversals, and avoid having to come up with contorted reasoning and confusing precedent. I’m only speculating here, but I bet I’m not too far wrong.

Why is their desired outcome generally in favor of granting immunity? There is likely a policy preference in favor of letting the police do what they do. The Court has made it clear in other lines of cases that it has a preference for letting the police gather and use evidence, for letting the police catch culprits. In the Qualified Immunity realm, the Justices are probably loath to create incentives that would undermine all that. As mentioned in the comic, if a cop’s afraid of getting sued for crossing the line, he’s not going to go anywhere near it. All kinds of evidence hecould have gotten, and culprits who could have been caught, will go free because the officer had a compelling personal reason to hold back. (This is precisely why the Exclusionary Rule works, by the way — rather than penalizing the officer personally for violating the 4th Amendment, we simply don’t let the government introduce evidence at trial it shouldn’t have had in the first place. The cop can go right up to the line and gather all the evidence the law allows, and the law only takes away what shouldn’t have been gotten. /digression.)

Okay, that would explain their chosen outcome. But it doesn’t explain why they’re bothering to act in the first place. Why take cases that don’t seem Earth-shaking? Why correct lower-court errors without establishing useful precedent? There I’d have to speculate again, but I strongly suspect that they feel that this is “doing the right thing,” because for decades the Court has wished Qualified Immunity didn’t even exist.

The lone dissent in the 1961 Monroe case was Justice Frankfurter. He said the Court was making this all up, that §1983 wasn’t about any of this — it was only supposed to have been used when your rights were violated by state law, not merely by a state actor. The statute was there to give you a remedy in cases where you couldn’t already sue under state law, because state law is what allowed the wrongdoing. Broadening the scope of §1983 meant the federal courts would be poking their noses in local affairs needlessly. But more than that, it would require the federal courts to make on-the-spot decisions about what our civil rights are, when they didn’t need to.

That was the lone dissent in 1961, but during the later Burger years and the Rehnquist years the Court seemed like they’d come around to his way of thinking. If that vote was held today, I bet the majority of the Court would hold that view.

So the short answer to all of this is probably “the Court wishes it didn’t have to, but it does what it does because it wants to.”

Very glib, I know. But I don’t have time for a longer (or shorter?) email with I’m sure better analysis. Hope it helps, though!

SCOTUS makes a mistake anybody would have made. So it’s okay, right?

Tuesday, December 16th, 2014

The Fourth Amendment established one of our most important protections against government power: if the police search you or your stuff for evidence, their search must be ‘reasonable’; and if they do get a warrant then it has to be specific, and they’ll need probable cause. In writing, it couldn’t be more straightforward.

In practice, however, its meaning is anything but. Over the years, the courts have dramatically muddied the meaning of the Fourth Amendment. Not as badly as the Fifth, perhaps, but badly enough to severely erode the Fourth’s protections against unreasonable searches and seizures. The courts certainly weren’t trying to undermine the Amendment (well, not most of the time, anyway). It’s been a long series of discrete errors, gradually chipping away at what counts as an “unreasonable” search, and what can be done about it. And so legal types have long complained that the courts have been “eroding” our Fourth Amendment protections.

Sometimes this happens because the legally correct outcome sometimes seems so… wrong. What judge wants to let some vile nasty inhuman threat to society go free, on a mere “technicality?” Very often, this sense of “doing the right thing” in fact leads judges to make errors in law — waving away the protections this one bad guy had, and thereby creating a precedent that erases everyone else’s. It’s the “hard cases make bad law” principle, and it’s very real.

Sometimes this erosion happens because the courts simply don’t understand the law they themselves have created! Even the Supreme Court does this. It happens more often than you might think.

And yesterday, the Supreme court did it again.

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The case is Heien v. North Carolina, and in a nutshell the Supremes said this: If a police officer mistakenly thinks something you’re doing is against the law, and if it’s a mistake any reasonable person would have made, then it’s okay if he stops you to investigate. The Court broadened the definition of “reasonable suspicion” so that now an officer can be wrong about what your were doing, and whether it was even illegal in the first place, and he’ll still be allowed to stop and frisk you. Based on the justices’ own understanding of the law, it’s okay, they say.

Actually, it’s not okay. The Supremes themselves were mistaken about the law.

Was it a “reasonable” mistake?

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It looks like, at the heart of this mistake, we’ll find the “Exclusionary Rule.” This is law invented by the courts, specifically for the purpose of enforcing the Fourth Amendment. If you’re charged with a crime, and the police have evidence they unlawfully seized from you, your only protection is the Exclusionary Rule: if the police got evidence by violating your rights, then that evidence cannot be used against you at trial. The officers are not themselves penalized in any way; all we do is take away the evidence that they shouldn’t have had in the first place.

This is a very civilized rule, if you think about it. In any situation, there’s a line the police cannot cross. Every situation is different, and the rules aren’t always clear. If the police themselves might be punished for inadvertently crossing that line, then they’re going to avoid going anywhere near it. Society would lose a lot of evidence that the police could have lawfully obtained. Guilty people whom society really wants to punish will get away with it. That’s bad. A rule meant to deter police conduct is not what we want. Instead, however, the Exclusionary Rule lets police go right up to the line, without fear of repercussion if they mistakenly cross it. All the rule does is take away the evidence they get from crossing the line if that happens. It merely excludes what they shouldn’t have had anyway. The rule has zero deterrent effect on police personally, and only serves as an incentive to collect evidence lawfully if they want to ensure its use at trial. It’s really quite elegant: the lawful evidence is maximized, the unlawful evidence is eliminated. What more could society want?

The problem comes when judges are mistaken about the law. When they say the Exclusionary Rule is all about deterrence. Which is precisely what the Rule isn’t about. They get the whole purpose of the Rule wrong, and then they base the rest of their reasoning off of that wrong premise. And they reach a result that’s not only wrong, but inconsistent, confusing, overcomplicated, and unjust. There’s some satisfaction in the guilty being punished, but in so doing they’ve made things worse for everyone else.

So say the police got a bad warrant, but they didn’t know it was bad. Acting in good faith, they seize evidence the Fourth Amendment absolutely forbids them from having. But they didn’t know it was bad. They sincerely and reasonably thought it was good. There’s no way to deter people against being reasonably mistaken. You just can’t. So if you think the Exclusionary Rule is about deterrence, you’ll have to conclude that it’s literally pointless if the police were acting in good faith. And if you’re a court, you carve out an exception to the Fourth Amendment — a “Good Faith” exception –and our protections are eroded just a little bit more.

It happens all the time, and it happened yesterday.

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As one might expect when a court is arguing from a mistaken premise, the Court’s justification was convoluted and strange. In an area where one would expect the law to be fairly current and on point, the Supreme Court had to reach way back to its earliest cases, especially about international-border customs seizures as opposed to Fourth Amendment seizures, to find something to justify itself. You can read the case itself here, and Scotusblog has a typically excellent analysis here.

The legal issue is whether “reasonable suspicion” is still “reasonable” if the police officer is wrong on the law. “Reasonable suspicion” itself is about the police officer’s assessment of the facts on the ground, whether he’s seeing someone casing a bank to rob it, or someone who’s just pacing back and forth in front of it lost in thought. Police officers aren’t mind readers, and so their suspicion can be reasonable even if their conclusion turns out to be wrong. The whole point of “reasonable suspicion” is to allow the police to investigate whether their suspicion is correct.

It’s never been about whether the officer’s understanding of the law was correct. We want to let the officer stop you to investigate whether his assessment of the facts was correct. An officer doesn’t need to stop you to investigate whether his understanding of the law is correct. It doesn’t even make sense to say reasonable suspicion is reasonable if the officer was wrong on the law.

The Court’s ruling essentially broadens the definition of reasonable suspicion so that an officer can be wrong about what your were doing, and whether it was even illegal in the first place, and he’s still allowed to stop and frisk you.

Though it didn’t say so explicitly, the Court was essentially making the same “good faith” mistake all over again. A police officer is mistaken on the law. Not because he didn’t study it carefully, or because he was sloppy — no, it’s an error that any reasonable person would have made. Anyone would have thought you were breaking the law, despite the fact that what you were doing was technically legal. The officer’s mistaken belief wasn’t his fault. It was objectively reasonable. And there’s no way you can deter people from being reasonably mistaken. You just can’t. And so if the Exclusionary Rule is about deterring police conduct, it’s simply pointless to apply it here. So we have to carve out an exception — a “Reasonably Mistaken” exception — and our protections are eroded just a little bit more.

It would be a mistake to argue that the Court was wrong because its reasoning was convoluted and it relied on irrelevant case law, however. That’s not the problem with the decision. It’s only an outcome, a symptom, of the underlying error. Once again, they presumed that the Exclusionary Rule is something it categorically is not. That’s their error. And our cherished Fourth Amendment probably means just a little bit less now, as a result.

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So they were mistaken on the law. But it’s a mistake lots of judges, even those on the Supreme Court, have made before. It’s an “objectively reasonable” mistake.

But that doesn’t make it okay.

Correct, but Wrong: SCOTUS on Unreliable Eyewitness Identification

Thursday, January 12th, 2012

In this Information Age, it is hard to grasp sometimes that everybody does not know everything. And yet it is so. It is common knowledge, for example, that dinosaur fossils are the bones of creatures that lived scores of millions of years ago, that terrorist hijackers flew planes into the World Trade Center and the Pentagon, and that eyewitness identification testimony is statistically as reliable as a ’78 Chevy. And yet there are tons of people who sincerely believe that fossils are just a few thousand years old, that the U.S. government conducted 9-11, and that an eyewitness I.D. is the be-all-and-end-all of Truth.

Actually, it’s not fair to lump the I.D. believers in with 9-11 conspiracy theorists, Genesis literalists, truthers and the like. The others are sort of fringe-y. But if you put 12 ordinary citizens in a jury box, of good intelligence and sound common sense, and the victim points dead at the defendant and says “there is no doubt in my mind, THAT is the man who raped me…” you can almost hear all twelve minds slamming shut. They’ve heard all they need to hear. So far as they’re concerned, this case is over.

This despite the fact that study after study after study reinforces the fact that eyewitness testimony sucks.

And innocent people go to jail — or worse — because of it.

So you can imagine how keen the legal world was to get the Supreme Court’s decision in Perry v. New Hampshire, which came down yesterday. Perry, identified by an eyewitness as someone she’d seen breaking into cars, argued that Due Process required a judicial hearing on the reliability of that testimony before it could be admitted at trial.

Which was the exact wrong thing to argue.

Due Process requires that the government makes sure that it does not do things that make its identification procedures unreliable. It does not require that a judge do the jury’s job. Particularly when that job — weighing the reliability of a given bit of testimony — is incredibly fact-specific.

And especially given all the evidence of all the various factors that go into making eyewitness testimony unreliable — racial differences, time lapse, focus of attention, lighting, familiarity, stress, presence of a weapon, etc. — what judge in his right mind is going to want to be the one deciding whether this particular eyewitness’s memory is good enough?

So it’s hardly any surprise that the Supreme Court balked at Perry’s Due Process argument. By a vote of 8-1 (former prosecutor Sotomayor as the lone dissenter, none better to know the power of the EW ID) the Supremes held that, unless law enforcement is alleged to have gotten the I.D. under unnecessarily suggestive circumstances, there’s no Due Process issue and certainly no reason for a pre-trial hearing on reliability.

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No, what Perry could have argued for is either (more…)

Because Nino Said Yes, the Chief’s Saying No? To What Extent Does a Justice’s Vote Depend on the Others’ Votes?

Friday, November 11th, 2011

The decisions of the U.S. Supreme Court often have important repercussions around the world, so it’s perhaps not surprising that is studied by lawyers and academics far beyond the Court’s jurisdiction. The results of such studies are often more useful for their insights into how others see us, than for any particular insights into how things work here. That’s because typically, the concepts and even the words we use to describe them just don’t translate all too well. Then again, they’re often misunderstood right here at home — the adjectives “liberal” and “conservative,” for example, have very different meanings depending on whether they’re modifying a political or jurisprudential noun, but try telling that to the average journalist.

Every now and then, however, you get a foreign study that — while still misinterpreting concepts and terms — nevertheless makes a nifty point.

One example was published just a couple of days ago: “Justice Blocks and Predictability of U.S. Supreme Court Votes,” (Nov. 9, 2011) by Spanish academics Roger Guimerà (of the Institució Catalana de Recerca i Estudis Avançats in Barcelona) and Marta Sales-Pardo (of the Departament d’Enginyeria Química, Universitat Rovira i Virgili in Tarragona). In their paper, Guimerà and Sales-Pardo tried to figure out how any given justice’s votes are affected by the votes of the other justices — not why or how, but whether the vote of Justice X depends on how each of the other justices are voting.

This is something that common wisdom claims happens all the time, such as the trope that Thomas tends to simply follow Scalia’s lead. There is usually some basis for the common wisdom, but it is never entirely accurate (in fact now there’s even talk of Thomas being a thought leader in his own right).

But all these comparisons tend to only compare one justice to another, or maybe blocs that tend to vote together on certain issues. The Supreme Court, however, is made up of nine justices, who all interact with each of the others in different ways. That’s 36 separate relationships. It’s even more complex when you try to figure how any relationship is affected by the other 35 relationships, and so on.

So enter Network Theory.

This is Guimerà and Sales-Pardo’s bailiwick. As NewScientist puts it, they “study complex systems, such as the metabolism of living cells, by considering them as networks of interacting components.” It’s often hard to tell what’s really going on in there, when there are many things interacting in often poorly-understood ways, and when you don’t have all the data you’d like to have. Network theory is a way to put the pieces together and figure out what the relationships probably are. Think of it as a sophisticated form of statistical analysis. It has been applied to hard sciences like biology and physics, to complex entities like the internet and the human brain, and even to the soft sciences of sociology, politics and economics.

Guimerà and Sales-Pardo determined that, if you look at how (more…)

More on the NYT’s Absurd Article

Tuesday, August 3rd, 2010

Over on the Volokh Conspiracy, Prof. Jonathan Adler posted another critique on Sunday of the New York Times’s silly article claiming the Roberts Court to be the “most conservative in living memory.”  Adler makes some of the same points we did last week, finding fault with the Times’s definitions of “conservative” and “activist,” but he goes further to point out that the Roberts Court is actually the “most restrained — or least activist” Court since WWII.  We recommend taking a look.

The New York Times Gets It Wrong… Again

Tuesday, July 27th, 2010

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Over the weekend, the NYT printed an article calling the Supreme Court under C.J. Roberts the “most conservative in decades.”  “The court not only moved to the right,” the article said, “but also became the most conservative one in living memory, based on an analysis of four sets of political science data.”

We admit to reading the article with a fair amount of skepticism.  Whenever political science folks or sociologists or others of their ilk start talking about the Court being “conservative” or “liberal,” we get uncomfortable.  The words have very different meanings for politicos than they do for jurists.  A judicial conservative is not necessarily supportive of right-wing politics.  A jurist who is politically conservative may well be fairly liberal in his jurisprudence, especially if he’s using his opinions to further a political agenda. 

The article did nothing to assuage our discomfort.  As we feared, it conflated the concepts of political and judicial conservatism.  The article really focused on whether rulings were more or less likely to be favored by conservative political platforms. 

To be fair, the headline really is misleading.  The article itself says at least twice that “the recent shift to the right is modest.”  And it does point out not only that “the court’s decisions have hardly been uniformly conservative,” but also that “the court’s decisions are often closely aligned with or more liberal than public opinion.”

But the basis of any analysis is its presumptions.  And the presumptions applied here are beyond simplistic.  “In the database, votes favoring criminal defendants, unions, people claiming discrimination or violation of their civil rights are, for instance, said to be liberal.  Decisions striking down economic regulations and favoring prosecutors, employers and the government are said to be conservative.”  Forget being beyond simplistic, it’s downright misleading.

Notice that the focus is on who prevailed in the case, not why the Court sided with them.  Just because a criminal defendant won his appeal, for example, that does not mean the justices were being liberal when they sided with him.  The Melendez-Diaz case, after all, pretty clearly restrains the prosecution and favors defendants, by requiring chemists to testify at trial as to their analysis of alleged drugs.  Who wrote the majority opinion?  Scalia.  Hardly a liberal.  His reasoning?  Very conservative: this is little more than an application of existing 6th Amendment law under Crawford.  Scalia is one of the most conservative justices, and yet he’s also the Court’s biggest protector of 6th Amendment rights.

Similarly, just because a civil-rights claim prevails, that has nothing to do with whether the decision itself is particularly liberal.  And if the civil-rights claimant loses, that doesn’t mean the decision was conservative.

The analysis is flawed from the get-go, because it focuses on the wrong thing entirely.  The focus should not be on who won, but why they won.

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We also made a face when we read this bit: “The Roberts court is finding laws unconstitutional and reversing precedent — two measures of activism — no more often than earlier courts.  But the ideological direction of the court’s activism has undergone a marked change toward conservative results.”

No, no and no.

Judicial activism is not measured by finding laws unconstitutional.  Judicial activism is creating new law where none existed, or legislating from the bench — it is another way of saying the court is exceeding its authority.  When the law is different from how a judge thinks it ought to be, an activist judge changes the law.  Merely applying existing constitutional law, however, and finding that the legislature has passed a statute that happens to be unconstitutional — that is precisely what the courts are supposed to do in the first place.  It is the opposite of judicial activism.

Reversing precedent isn’t so much a measure of activism, either.  Some precedents ought to be reversed for perfectly good reasons, such as a change in societal circumstances that necessitated the precedent in the first place.  There is nothing activist about saying “applying the Constitution to fact set A resulted in rule X, but now we have fact set B and rule X doesn’t follow any more.”  What is activist is deciding not to reverse a no-longer-applicable precedent, in order to advance some policy interest.  (Grutter, anyone?)

Recently, there’s been an Orwellian movement on the left to redefine the phrase “judicial (more…)

The Suspense is Killing Us

Wednesday, June 2nd, 2010

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

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

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

This trio of cases attack the “honest services” fraud law.  18 U.S.C. § 1346 was supposed to prevent political corruption, but Congress wrote it so sloppily that it’s become a catch-all crime for federal prosecutors.  Anyone can get charged with it, and nobody knows what it means.  The Court telegraphed its dislike of the statute during oral arguments of all (more…)

Supreme Court Smackdown

Monday, January 25th, 2010

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

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

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

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

Supremes Punt, but Stevens AND Scalia Agree: It’s Time to Clarify whether Feds Can Still Prosecute Old Civil Rights Crimes

Monday, November 2nd, 2009

seale

Way back in May 1964, in the very small town of Meadville, Mississippi, two black teenagers were hitchhiking down the road when James Ford Seale drove up. Seale, a member of the KKK, told them he was a revenooer looking for moonshiners, and told the boys to get in his car. He then drove them off into the forest. A bunch of other Klansmen met up with them.

Seale pointed a sawed-off shotgun at the boys, while the other Klansmen tied them to a tree. Then the boys were whipped to within an inch of their lives with “bean sticks.” The bloodied boys were hauled to a farm nearby, where Seale bound and gagged them with duct tape. The boys were wrapped in a tarp, shoved into a Klansman’s trunk, and driven 100 miles to a secluded riverbank.

While the boys were still alive, they were chained to the engine block of an old Jeep, and to pieces of railroad track. Then the Klansmen dumped the boys in the river, where they drowned. One of the Klansmen later reported that Seale “would have shot them first, but didn’t want to get blood all over the boat.”

The boys were killed because they were black, and because Seale thought they might have been civil-rights workers.

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In June 1964, three civil rights workers went to Longdale, Mississippi, to investigate the burning of a Methodist Church that had been a civil-rights meeting place. A sheriff’s deputy, also a KKK member, recognized their car and locked all three up. The men were held incognito until an ambush could be prepared, and then were told to get out of the county. The deputy followed them to the edge of town, then pulled them over again. A KKK gang showed up, and the three workers were taken to an isolated place to be brutally beaten and shot to death. Their car was burned in a swamp, and their bodies were buried in a dam.

Their disappearance got national attention, and search parties went out.

In July, one of the search parties found the drowned bodies of the two boys Seale had killed in May.

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Seale and several others were investigated for the murders, appearing before a House subcommittee on Un-American Activities in 1966. The Klansmen were asked about a number of kidnappings and murders, but nothing ever came of it. Seale just sat there smoking a cigar, and took the Fifth.

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About forty years went by. The murders of Charles Moore and Henry Dee were forgotten.

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Then a Canadian filmmaker saw some old CBC footage of the boys’ bodies being hauled out of the river, with the narration “it was the wrong body. The finding of a negro male was noted and forgotten. The search was not for him. The search was for two white youths and their negro friend.”

The filmmaker, David Ridgen, began working on what would become the documentary “Mississippi Cold Case.” He tracked down the brother of one of the victims, a retired 30-year Army veteran named Thomas Moore, who helped work on the film.

The press had been told that Seale had died in the meantime. But it was discovered that he still lived, and his family had lied to protect him. Ridgen and Moore went to the local U.S. Attorney, who promised to re-open the case.

In early 2007, Seale was indicted on two counts of kidnapping and one count of conspiracy. A fellow Klansman, after being given immunity, told the whole story. Seale was convicted of kidnapping after a jury trial in June 2007.

In August 2007, Seale was given three life sentences.

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Seale appealed to the Fifth Circuit. He argued that the statute of limitations for kidnapping had run out. At the time of the crime, there was no limitations period; but in 1972 it changed to a 5-year period.

That’s a pretty damn good argument. It was a capital kidnapping in 1964, which had no statute of limitations. But then in 1972 we got rid of capital punishment. So it reverted to an ordinary 5-year period.

The government pointed out that in 1994, after Furman v. Georgia, we brought back the death penalty. It was constitutional again. So this was a capital kidnapping again. And he was prosecuted and sentenced after it had been deemed a capital kidnapping again. So there was no statute of limitations.

The Fifth Circuit agreed with Seale, and reversed his conviction in September 2008.

The prosecution requested a rehearing en banc. The full panel vacated the appellate decision, so that it could reconsider the issue. They sort of have to do that.

The full panel then duly reconsidered the issue, and split evenly down the middle in June 2009. The effect was to leave the trial court’s conviction and sentence intact. The original Fifth Circuit decision had been vacated.

So now there was no appellate decision at all! And Seale was left with no more avenues to fight his conviction.

Almost.

Seale took it to the Supreme Court. It wasn’t a petition for certiorari, but the almost-forgotten “certified question.”

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How that works is, the Circuit “certifies” a question that it wants the Supremes to help out with. The Supreme Court is asked to instruct the Circuit court on how it ought to rule in the case.

That’s permitted by Rule 19 of the Supreme Court rules, but it only happens once in a blue moon. The last time it happened was in 1981, when the Second Circuit asked for help with the President’s authority to say claims before the Iran-U.S. Claims Tribunal had no legal effect in U.S. courts (the Supremes said he can do it). There was another certified question in the 1970s on whether a retired judge gets to vote on whether to hear a case en banc (no). Before that, there was one in 1964 on whether there is a right to a jury in a criminal contempt case (no). And the only other one in living memory was in 1946, where the Supremes said the Circuit can’t review by mandamus a district court’s remand back to the state court after the case had been removed to the district court.

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So here was a historic opportunity for the Supreme Court to not only decide a rare certified question, but also to decide an issue of great importance to a variety of civil-rights-era cases that are still kicking around the federal courts.

And the Court refused.

This isn’t the first time the Roberts Court has punted on issues that it really ought to have decided. And the did it again here.

This is an issue that may seem hyper-technical, but it is critically important! There are a lot of old cases kicking around that were capital cases at the time, then weren’t and now are again. There’s lots of aging Klansmen out there, not to mention the number of cold-case murders being resuscitated by DNA evidence. Whether the feds can even prosecute these cases any more is at stake!

Not to mention the fact that Seale, horrible as his crimes were, seems now to have been denied due process. He can’t appeal any more? Just because the Circuit (singular) split, and the Supreme Court punted? His legal argument is going to go undecided? How is that remotely right?

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The Court doesn’t write opinions from a denial of a certified question. But they sure got a dissenting opinion today, in United States v. James Ford Seale, by the strangest of bedfellows: Justices Stevens and Scalia.

The two, usually diametrically opposed in their jurisprudence and judicial philosophy, agreed wholeheartedly that the Court should have decided this case.

This certificate presents us with a pure question of law that may well determine the outcome of a number of cases of ugly racial violence remaining from the 1960s. The question is what statute of limitations applies to a prosecution under 18 U.S.C. §1201 commenced in 2007 for a kidnapping offense that occurred in 1964.

* * *

In 1964, a violation of §1201 was a capital offense [if] the victim was harmed, and since 1994 a violation of §1201 has been a capital offense when the kidnapping results in the loss of life. But for more than two decades in between, Seale’s crime was not punishable by death.

* * *

The question is narrow, debatable, and important. … I see no benefit, and significant cost, to postponing the question’s resolution. A prompt answer from this Court will expedite the termination of this litigation and determine whether other similar cases may be prosecuted.

We couldn’t have said it better ourselves.

How the Court Should Rule in Shatzer

Thursday, October 8th, 2009

The Supreme Court heard a very important argument this week in the case of Maryland v. Shatzer. It was one of those situations where the oral argument makes a huge difference in the outcome of the case. We read the briefs earlier this month, and remarked to colleagues that both sides’ arguments seemed eminently reasonable. So reasonable that we couldn’t form a strong opinion either way.

But the oral arguments convinced us thoroughly: Both sides are stupid.

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The case involves custodial interrogation, and whether and when it can be started again after someone has asked for a lawyer.

When someone is in custody, and they ask for a lawyer, interrogation is supposed to stop. If the police keep questioning anyway, then the defendant’s answers cannot be used to prove the case against him.

So even if someone confesses to the crime at that point, the confession cannot be used to prove he did it. Even if there is no evidence of duress, and there is every reason to believe that the confession is perfectly reliable, it cannot be used.

The underlying policy is that our criminal justice system puts a greater value on not overriding someone’s free will. We don’t want people to be forced to hang themselves. Getting into someone’s mind, and making them testify against themselves, against their will, is abhorrent to us. It reeks of torture, the Inquisition and Star Chamber.

That explains why custodial interrogation gets the Miranda rights, but there is no similar concern with taking non-testimonial evidence from someone against their will. A breathalyzer, a blood test, a voice exemplar, a vial of spit — we don’t really care whether you want to provide the evidence or not. The evidence exists independently of your free will. But a confession during interrogation is solely a matter of free will.

And confessions are dramatic evidence, to be sure. Once evidence of a confession comes in at trial, it’s nigh impossible for a jury to think the defendant didn’t do it. It’s a game-ending bit of evidence, in most cases.

Police custody, in and of itself, is such an extreme and distressing situation that the law just presumes it to be coercive. If an objectively reasonable person would not have thought he was free to leave, then he’s being compelled to sit there and deal with the cops. There’s compulsion, because the cops can keep questioning you until you break, and confess. Maybe it’s a true confession, and maybe you’re just saying it to make it all stop, but either way your free will was overridden.

And so we have the Miranda rule, which says that defendants must be informed of their right to remain silent and the right to have a lawyer present during any custodial questioning. If someone’s questioned in custody without being given these warnings — even if they’re a respected jurist who already knew them — then his answers cannot be used against him. And if he is given the warnings, and exercises his right to remain silent or his right to counsel, but the police keep questioning him, then his answers cannot be used against him.

If the defendant says he won’t talk without a lawyer present, then allquestioning must cease. This is a per se exclusion, period. The police cannot re-start questioning unless the defendant himself initiates further discussion. Unlike the right to silence, which can be waived down the road after new Mirandawarnings, the right to a lawyer once asserted can never be waived again, no matter how many times the police re-Mirandize him. It can only be waived if the attorney is actually present at the time. That’s the principal rule of Edwards.

(Note that asking for a lawyer here is the same as saying you won’t talk without a lawyer present. Unlike the Sixth Amendment right to counsel, where once you’ve actually been charged with a crime you’re entitled to have a lawyer provided, this is the Fifth Amendment right to counsel. The cops don’t have to get you a lawyer, they just have to stop questioning you until you get one.)

This is a bright-line rule. Our jurisprudence likes bright-line rules here. We don’t want the cops to have to think about what they can and cannot do; we want them to know. We don’t want a balancing test of competing principles, because that means the courts would have to get involved and decide what can and cannot be done. It would have to be decided after the fact, on a case-by-case basis. Without a bright-line rule, the police would probably engage in more improper interrogations than otherwise, because who knows what some judge down the road might think was okay? And who knows whether the case would even get that far?

So bright-line rules here protect defendants’ interests, police interests, and the courts’ interests. And Edwards is nothing if not a bright-line rule.

The problem with bright-line rules is that they are absolute, they have no exceptions, and so unless they are narrowly-tailored they can have absurd results.

And that is why this week the Supreme Court heard the case of Maryland v. Shatzer.

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Six years ago, Michael Shatzer was in state prison, serving a lengthy sentence. Meanwhile, a social worker got a report that Shatzer had (before going to prison, obviously) forced his then-three-year-old son to perform fellatio on him. The social worker told the cops, and an officer came to the prison to talk to Shatzer about it.

Shatzer was taken to an interrogation room, and was given his Miranda rights. Shatzer asked for a lawyer, and the officer ended the interrogation. The officer went away, and Shatzer was taken out of the interrogation room and returned to his regular custody. The investigation was eventually closed.

Nearly three years passed. Shatzer remained in prison.

Now his son was a few years older, and was able to give more details about what had happened to him. The police began a new investigation, which was assigned to a new police officer.

The new officer went to the prison, Shatzer was taken to the interrogation room, and the officer Mirandized him.

This time, Shatzer waived his rights, and agreed to speak with the officer. He flatly denied the allegations that he had forced his son to perform fellatio on him. But he did admit to having masturbated in front of his little boy.

A few days later, the questioning continued. Shatzer was Mirandized again, and he again waived his rights. He took a polygraph test and failed it. Then he started crying and said “I didn’t force him. I didn’t force him.”

At this point, he finally asked for a lawyer, and the questioning ended.

Shatzer was prosecuted for sexually abusing his son. He tried to suppress his statements, on the grounds that he should never have been questioned the second time, under the Edwards rule. He’d asked for a lawyer, and that per se prohibition never evaporated.

The trial court said no, the statements could come in, because the intervening three years constituted a “break in custody” that ended the Edwards prohibition on further questioning. Custody had ended, so the compulsory situation had gone away. The new questioning was a new custodial interrogation justifying a new Miranda warning that was properly waived.

After Shatzer got convicted, the Maryland Court of Appeals reversed. The appellate court held that the passage of time cannot constitute a break in custody. The court held that, if there is a break-in-custody exception to Edwards, it first of all would have to mean something different than the break-in-custody exception for the right to remain silent, and secondly it wouldn’t have existed here anyway when Shatzer had remained in prison the whole time.

The state appealed to the Supreme Court, arguing that the Edwards prohibition must evaporate over time, so that a substantial lapse of time between interrogations would allow the cops to re-Mirandize and try again. The point of Edwards is to prevent the cops from “badgering” a defendant into answering questions without a lawyer, the state said. (At the end of its brief, Maryland even suggested that the bright-line rule ought to be overturned.)

Shatzer’s brief argued that the bright-line rule had to be maintained, to ensure that defendants aren’t coerced into making confessions. If a defendant asks for a lawyer, and all he gets is another reading of his rights, he’s hardly going to expect a second request for a lawyer to be effective, and so he might as well speak. It would undermine the whole point. And if a “break in custody” is all it takes to restart the Edwards rule, then all the cops would have to do is release, rearrest and repeat until the defendant finally gave in.

-=-=-=-=-

Both merits briefs seemed eminently reasonable.

But the oral arguments were frankly idiotic. Both sides made absolutely unreasonable claims that could only undermine their arguments.

For example, Chief Justice Roberts let Maryland’s A.G. get three sentences out before cutting to the point: “A break in custody of one day, do you think that should be enough?” Maryland’s response: Yes.

Roberts pressed on: “So what if it’s repeatedly done? You know, you bring him in, you give him his Miranda rights, he says ‘I don’t want to talk,’ you let him go. You bring him in, give him his Miranda rights, he says ‘I don’t want to talk.” You know, just sort of catch-and-release, until he finally breaks down and says ‘all right, I’ll talk.” Maryland’s response: “We would suggest that the break of custody would be the end of the Edwards irrebuttable presumption.”

Shatzer’s position was even worse, if you can believe it.

The Public Defender opened her mouth to speak, and Justice Alito jumped down her throat. Her first words were that the Court couldn’t create any exceptions to the rule. Alito said, hold on, let’s say “someone is taken into custody in Maryland in 1999 and questioned for joy riding, [invokes his right to counsel, is] released from custody, and then in 2009 is taken into custody and questioned for murder in Montana…. Now does the Edwards rule apply to the second interrogation?” The lawyer’s response: “Yes it does, Justice Alito.”

As one might expect, the justices went to town on the lawyers. Scalia, as usual, got in some good laugh lines at their expense. We’ll leave the entire oral argument to your own reading enjoyment (you can read it here), but these opening exchanges sum it up pretty well.

Maryland’s position is idiotic. They want a bright-line rule that any break in custody ends the Edwards prohibition. It would allow precisely the catch-and-release badgering that Roberts suggested. They argued that, during the release period, if the defendant didn’t go out and get a lawyer, then they’ve essentially revoked the request to have an attorney present at any future questioning.

Shatzer’s position is equally idiotic, if not more so. He wants a bright-line rule that any invocation of the right to counsel essentially immunizes a defendant from any further police questioning in any subsequent action anywhere, for the rest of his life, whether or not the police could have even known about his prior invocation of the right. A police officer in Alaska would have to ascertain whether a suspect had ever been interrogated by police anywhere else in the country at any time in the suspect’s life, and whether the suspect had asked for a lawyer then. That’s flatly impossible and unrealistic.

Both of the parties claim that the existing bright-line rule might create absurdities in theory. To prevent them, they each propose reductio ad absurdum rules at the extreme ends of the spectrum, guaranteed to create absurdities in practice. Well done, folks.

(The lawyer for the United States, as amicus, did make an important point — that the whole purpose is to make sure people aren’t being compelled to incriminate themselves against their will — but the rest of his time was eaten up by nonsense about how long a break in custody would count as enough of a break to evaporate an assertion of the right to counsel.)

-=-=-=-=-

So what should the rule actually be? Seriously, this is not rocket surgery here. The answer seems perfectly obvious:

1) If a suspect was in custody, was read his Miranda rights, and invoked his Fifth Amendment right to have a lawyer present during questioning…

2) And if there was a break in custody, so that an objectively reasonable person would have felt free to leave his questioners…

3) Then there is a rebuttable presumption that his invoked right to counsel continues to be invoked with respect to any subsequent questioning about the same underlying allegations.

4) The state can rebut this presumption with facts that demonstrate, by clear and convincing evidence, that the suspect no longer desired the presence of counsel during questioning. (This will necessarily be extremely rare, though not at all inconceivable.)

The rule could be streamlined even further, by deleting the phrase “there is a rebuttable presumption that” from #3, and deleting #4 altogether.

This rule provides all the protections that defendants, law enforcement and the courts require. At the same time, it avoids the absurdities of the existing bright-line rule, and of the more extreme bright-line rules proposed by the parties in this case.

Supreme Court to Decide Whether Second Amendment Applies to the States

Wednesday, September 30th, 2009

 

For the record, our position on gun control is to use both hands, relax, and control your breathing. But let’s talk about the law.

Last year, the Supreme Court historically decided that the Second Amendment gives individuals a constitutional right to possess firearms. The ruling, in District of Columbia v. Heller, was that the right of the People to bear arms was an individual right (so it wasn’t limited to militias or the military), and that it was a pre-existing right (recognized by the Constitution, and not created by it). The Court said there’s room for reasonable regulation, but an outright ban is unconstitutional.

The District of Columbia, however, is not a state. The Heller decision only directly applies at the federal level, which includes D.C. Whether the same rule applies to the states hasn’t been formally decided yet. And what counts as reasonable regulation at the state level is also an open question.

Obviously, there are plenty of folks who would like these things to be decided. Some want this to remain strictly a federal issue — the Bill of Rights originally did not apply to the states, and only gradually over the years have most (but not all) of the individual rights therein been incorporated by the Fourteenth Amendment. The Second, Third and Seventh Amendments have not yet been held to apply to the states.

Others, of course, want this individual right to be incorporated by the Fourteenth Amendment’s “privileges and immunities clause.” (That clause is what gives individuals the Bill of Rights protections from governmental intrusions, at the state and local level, by virtue of their national citizenship. So it protects you from your local cops’ infringement of speech, unreasonable search and seizure, etc.)

The Circuits are split on the issue. The Ninth Circuit ruled earlier this year that the Fourteenth Amendment incorporates the Second Amendment to the state level. But the Seventh Circuit said no, it doesn’t. So it’s certainly a ripe issue for certiorari.

Any number of cases have been percolating in the system, really, to give the Supreme Court a chance to decide the issue. The NRA alone filed five cases on the issue in Illinois alone. So it hasn’t been so much a question of whether the Court would decide it, but which case it would choose to hear.

Well, this morning, the Supremes announced the case. McDonald v. Chicago (08-1521) involves pretty much the same issues as Heller. Chicago’s gun-control laws are practically identical to those D.C. had, so it really is a good case to narrowly decide whether the rule should be extended to the states. (The various court filings can be found here.)

The Court’s calendar is full for the rest of the year, so oral arguments won’t be scheduled until January at the earliest.

Ninth Circuit Bungles Math, Can the Supremes Fix It?

Tuesday, September 1st, 2009

Prosecutor's Fallacy

The “Prosecutor’s Fallacy” is one example of why we think Statistics should be a required course in college. Let’s say the police have the DNA of a rapist. Only 1 in 3,000,000 people chosen at random will match that DNA sample. Your DNA matches. At your trial, the DNA expert testifies that you have only a 1 in 3,000,000 chance of being innocent. That is not correct, however. That’s an example of the Prosecutor’s Fallacy.

Yes, there is a very small chance that someone’s DNA would match if they were innocent. But that is not the same as saying there’s a very small chance that someone is innocent if their DNA matches.

This is basic conditional probability. And if you think about it, it’s just common sense. What you’re doing is switching the conditions around, and leaving the result unchanged. You can’t expect to change the conditions and not change the result.

To illustrate with an extreme example, we drew the picture you see above. A black circle indicates a DNA match. All guilty people are going to have a DNA match, obviously. And a tiny fraction of innocent people are going to have a DNA match, as well. But if the number of innocent people is large enough, then the number of innocent people whose DNA matches could actually be larger than the number of guilty people. Someone whose DNA matches is actually more likely to be innocent in that scenario.

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Prosecutors and DNA experts aren’t the only ones who get this wrong. Courts do, too. The Ninth Circuit recently made a hash of it in their decision in McDaniel v. Brown, which will now be one of the first cases to be heard by the Supreme Court at the start of this year’s October term.

In McDaniel v. Brown, Troy Brown was prosecuted for the alleged rape of a little girl. The facts are pretty gruesome, but irrelevant here. What’s relevant is that, at his trial, the DNA expert testified that Brown’s DNA matched the DNA in the semen found on the girl, that there was a 1 in 3,000,000 chance that someone’s DNA would match, and that therefore there was a 1 in 3,000,000 chance that Brown was innocent.

Brown got convicted. He later brought a habeas petition to the District Court. He introduced a professor’s explanation of how the prosecution had screwed up. The District Court expanded the record to include the professor’s explanation, and found that the DNA expert had engaged in the Prosecutor’s Fallacy. In part because of that (there was also a chance it could have been his brother’s DNA), the District Court found there wasn’t sufficient evidence to convict.

The government appealed to the Ninth Circuit.

Now, the Ninth is known for being touchy-feely. It’s not known for its analytical prowess. Posner, they ain’t. But they bravely tackled this statistical conundrum. And they screwed up.

In trying to deal with the prosecution’s error, the Ninth swung too far in the other direction, finding that the DNA evidence at Brown’s trial couldn’t establish guilt, period. No jury could have found Brown guilty.

So the government took it to the Supreme Court, making two arguments. One is procedural — that the habeas court shouldn’t have been able to consider the professor’s explanations, but only the trial record, in determining the sufficiency of the evidence before the jury. The other argument is that even though the chances of Brown being innocent weren’t 1 in 3,000,000 they were still pretty damn low, and the DNA evidence is still plenty sufficient.

Brown’s lawyers, to their credit, don’t seem to be arguing that the Ninth Circuit did it right. Instead of characterizing the decision below as ruling on the sufficiency of the evidence, Brown’s attorneys argue that it was really a Due Process ruling. The testimony wasn’t so much insufficient as it was incorrect. It was unreliable. This is bolstered by the fact that the Ninth Circuit ordered a new trial (which Double Jeopardy would preclude after a finding of insufficient evidence, but which is standard after a Due Process finding of unreliable evidence.)

That’s not the way the Ninth characterized its ruling, however, so Brown wisely suggested that the Supreme Court might simply kick the case back for the Circuit to explain its ruling better.

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Oral arguments are scheduled for October 13. We haven’t made any predictions yet about the upcoming term, so we’ll start here.

We think the state will convince Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Ginsberg and Alito of the following:

(1) The Ninth Circuit improperly remanded for a new trial, which is improper after a finding of insufficiency; and

(2) At any rate, the Circuit improperly found the evidence to be insufficient, when there was plenty of evidence of guilt.

We think that Justices Stevens and Breyer (we have no clue about Sotomayor) will dissent, arguing that the jury was totally thrown by the DNA expert’s mischaracterization, that this was a Due Process violation at the very least, and that the DNA evidence probably should have been thrown out entirely, so the Ninth Circuit should be reversed and the District Court’s original ruling should be reinstated.

What are the odds that we’re really right? Who wants to do the math?

Wow! Supreme Court Puts Actual Innocence in Play

Monday, August 17th, 2009

 

The Supreme Court did something today it hasn’t done for generations — it took an “original writ” of habeas corpus (a request made directly to the Supreme Court itself, instead of first filing it in a lower court), and then it ordered a federal District Court to hold a hearing on whether the convict is actually innocent.

The really dramatic thing about this is not the acceptance of an original habeas petition, but the fact that the Court’s order seems to imply that a convict may not be executed if he can prove actual innocence. As demonstrated most recently by the Court’s Osborne decison, it has persisted in absolutely refusing to decide that issue. They have gone out of their way, in fact, to repeatedly leave the question “unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable,” as Scalia said this morning.

Troy Anthony Davis was convicted 18 years ago, in Georgia state court, for the shooting death of an off-duty police officer, Mark Allen McPhail. At trial, Davis had insisted that he was innocent, though he had been present at the time. The jury didn’t believe him, and there were no constitutional problems with his trial.

Since then, seven of the witnesses against him have recanted their testimony, and evidence has come forward that the prosecution’s main witness was the actual killer. Davis has invoked the Supreme Court’s original habeas jurisdiction, relying on Court Rule 20.4(a) permitting such discretionary powers under “exceptional circumstances.”

A majority of the Court (new justice Sotomayor did not take part) agreed with Davis, found the necessary exceptional circumstances, and transferred the petition to a District Court. The District Court has been instructed to hold a hearing to determine whether evidence that could not have been obtained at the time of trial clearly establishes Davis’ actual innocence.

This appears to have set off quite a debate among the justices, in the middle of their summer recess.

Justices Scalia and Thomas are adamant that the Court did the wrong thing here. Most importantly, they point out that the District Court can’t grant Davis the relief he seeks, even if it wants to. So this transfer “is a confusing exercise that can serve no purpose except to delay the State’s execution of its lawful criminal judgment.”

District Courts only have power to release convicts pursuant to the Antiterrorism and Effective Death Penalty Act of 1996. That statute prohibits habeas corpus for claims that were adjudicated on the merits in state court, unless that decision violates “clearly established Federal law, as determined by the Supreme Court of the United States.”

Because the Supreme Court has gone out of its way not to determine the issue of whether actual innocence is a valid basis for habeas release, Scalia and Thomas hold that it cannot be “clearly established Federal law, as determined by the Supreme Court of the United States.”

Justice Stevens, writing for the majority (joined by Justices Ginsburg and Breyer), simply sidestepped the issue. The AEDPA might not apply in an original habeas petition, he mused. And even if it does apply, it might be unconstitutional for it to prevent relief for someone who has established his innocence. Or, in the alternative, one might find that clearly established Court precedent already permits such relief, as it “would be an atrocious violation of our Constitution and the principles upon which it is based” to execute an innocent person.

Stevens’ closing paragraph, however, makes it clear that he understands that the Court has never dealt with the issue before, but he feels that it is time to create some new law. “Imagine a petitioner in Davis’s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man.” Applying the law as it exists, the way Scalia and Thomas would have the Court do, “would allow such a petitioner to be put to death nonetheless.”

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In the 2008 term, Stevens seemed to be going out of his way to create a legacy. Writing as if he was about to announce his own retirement, his opinions seem to have sought for better principles rather than the application of existing ones. His jurisprudence is not about objective law, but subjective justice.

So this opinion fits right in with his others. To hell with the Court’s insistence on staying out of the “actual innocence” defense. here was a perfect opportunity to force the Court to deal with it once and for all. By sending it to the District Court expressly for the purpose of establishing that defense, he has ensured that the case will re-appear before the Supreme Court to decide it.

If Davis wins, the State of Georgia will surely appeal, claiming that the District Court lacked the power to decide the issue. If he loses, he’s sure to appeal, along with amici like the NAACP, claiming that the District Court abused its power in rejecting his claim.

Either way, the Supreme Court would eventually be faced with deciding the issue of whether actual innocence is a valid basis for a habeas petition.

It looks to us like Stevens is gaming the system for activist purposes. For the record, we firmly believe that actual innocence should trump procedure and all other legalistic concerns. But it remains to be seen whether he’ll succeed in getting the law to shape itself accordingly.

Lab Report’s Not Enough — Chemist Must Testify

Thursday, June 25th, 2009

lab-report.png

The Supreme Court this morning ruled that it’s a violation of the Sixth Amendment’s Confrontation Clause for the prosecution in a drug case to simply admit a sworn lab report, without the chemist’s testimony, to prove that the drugs were controlled substances.

This is what we predicted, of course, making us 3 for 4 for the final four criminal decisions of the term.

It was no suprise to see that Scalia wrote the majority opinion here in Melendez-Diaz v. Massachusetts. Scalia has long been the Court’s main champion of the Confrontation Clause. But it was surprising to see Kennedy not only rounding out a 4-Justice dissent, but writing the dissenting opinion.

* * * * *

In drug cases, the prosecution needs to prove that the drugs really are controlled substances. So chemists test the drugs, and write lab reports. To make the lab reports evidentiary, they’re sworn to by the chemists. It’s time-consuming to have chemists come to court to prepare or give testimony. So here in New York we typically see chemists testifying only at trial, not in the Grand Jury, where their sworn lab reports are introduced as self-authenticating records. In other states, like Massachusetts, the chemists never even testify at trial, and instead the prosecution relies solely on the lab report to establish that the drugs were drugs.

In the Grand Jury, there is no problem, because there is no right to confront witnesses there. But in the trial setting, there is a Sixth Amendment right to confront and cross-examine witnesses. Lab reports, of course, cannot be cross-examined. So the issue came up as to whether such lab reports are akin to testimony, in which case the Sixth Amendment would require that the chemist actually testify, so that there would be an opportunity for confrontation. Massachusetts believed that lab reports are not testimonial.

In today’s case, Melendez-Diaz was charged with selling cocaine, and at trial the prosecution merely submitted lab reports to show that the substance in question actually was cocaine. By a narrow 5-4 majority, the Supreme Court ruled that this was not enough, and that relying solely on the lab reports violated the Confrontation Clause.

* * * * *

Writing for the majority, Scalia started by hearkening back to the Court’s recent decision in Crawford v. Washington, 541 U.S. 36 (2004), which held that the Confrontation Clause guarantees the right to confront those who bear testimony against a defendant. If a witness does not appear at trial, then that witness’ other testimony against the defendant is inadmissible unless the defendant had the chance to cross-examine that testimony.

The Court in Crawford explicitly included affidavits and “other pretrial statements that the declarants would expect to be used prosecutorially.” Lab reports, opined Scalia, clearly fit that definition.

Lab reports are something that one would reasonably believe to be used at trial. Not only that, but under Massachusetts law, the sole purpose of the lab reports was to provide evidence for use at trial. “We can safely assume,” Scalia concluded, “that the analysts were aware of the affidavits’ evidentiary purpose, since that purpose — as stated in the relevant state-law provision — was reprinted on the affidavits themselves.”

Therefore, the lab reports are testimonial statements, and are therefore inadmissible unless the chemists testify at trial as well.

* * * * *

That pretty much ends Scalia’s substantive opinion. He’s finished by page 5. There are a lot more pages to come, however, because he’s only now starting to have fun. He opens this next section with a roaring salvo against the Chief Justice and Justices Alito, Breyer and Kennedy:

We must assure the reader of the falsity of the dissent’s opening alarum that we are “sweeping away an accepted rule governing the admission of scientific evidence” that has been “established for at least 90 years” and “extends across at least 35 states and six Federal Courts of Appeals.”

Scalia then demonstrates that every presumption inherent in those statements is simply false. After a few paragraphs of this, he says “we turn now to the various legal arguments raised by respondent and the dissent.”

There simply isn’t time to go into each of the arguments in detail. Suffice it to say that it is entertaining reading. Feel free to look at it yourself here.

Here’s a quick summary, however, of the points he makes:

1) Chemists are too “accusatory” witnesses. Their evidence is used for the purpose of inculpating defendants.

2) Chemists are witnesses like any other witness. They made observations and drew conclusions, which are now being presented in evidence.

3) Chemist reports are not automatically trustworthy and reliable on their face. They are the records of tests and observations made by human beings. Defendants need an opportunity to assess how reliable those tests and obervations happen to be. Chemists sometimes get things wrong.

4) Chemist reports are not automatically neutral or immune from the risk of manipulation. Chemists work for the police, and they also sometimes have pressures to sacrifice appropriate methodology for the sake of expediency. Chemists sometimes get things wrong.

5) Chemist reports don’t fall within the business-record exception to the hearsay rule, because the regularly conducted business activity here is the production of evidence for trial. They don’t have the same reliability as regular business records kept for neutral purposes.

6) Just because the defendant could subpoena and call the chemists as witnesses doesn’t mean the State has any less burden to do so itself. The Confrontation Clause does not shift the burden of proof to the defense.

7) Requiring chemists to testify at trial will not create an undue burden on states. States with large caseloads already do so, without any undue burden.

Most of these conclusions were telegraphed at oral argument, but it’s fun to read Scalia deal with each one in his own way.

* * * * *

It’s also fun to read the dissent fight back against Scalia here. But again, we’ll let you read it yourself.

No More Strip Searches in Schools

Thursday, June 25th, 2009

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In a groundbreaking unanimous decision this morning, the Supreme Court ruled that it was unconstitutional for school officials to perform a strip search of a student suspected of possessing prohibited drugs. And school officials who do this in the future will have to pay damages.

Writing for the Court in Safford Unified School Dist. #1 v. Redding, Justice Souter stated that the search was unconstitutional because there was no reason to believe that the suspected drugs presented a danger — they were prescription-strength Advil, not heroin — and because there was no reason to believe that the drugs were concealed in the student’s underwear in the first place.

However, because the law wasn’t clear on this at the time, the school officials have qualified immunity protecting them from civil liability for the search. In other words, they don’t have to pay damages this time, but any school official who does this from now on will be liable.

School officials being the over-reacting sort, as a rule, it is a safe prediction that strip searches are going to drop nearly to zero. A line has been drawn that still permits many, if not most, strip searches in schools. But no vice principal is going to risk being personally liable for damages if a jury thinks they crossed that line. So no vice principal is going to go anywhere near that line. Strip searches in schools are probably over.

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We previously blogged on this case here and here, and predicted pretty much this exact outcome. As we put it:

[The Court’s rule] will be fact-specific, whether the officials have evidence that is sufficiently credible to justify an articulable suspicion that contraband will be found during a strip search. And it will require a balancing, to ensure that the invasiveness of the search is proportionate to the danger of the contraband sought. A strip-search to find an explosive is one thing; but examining a young girl’s private parts to find Advil is another thing entirely.

It’s nice to be right once in a while.

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This case started when school officials found prescription-strength Advil in the possession of junior-high student, who immediately blamed someone else. That someone else was a 13-year-old girl named Savana Redding.

The vice principal, Kerry Wilson, walked into Redding’s math class and made her come to his office. He confronted her with the pills, and she denied knowing anything about them. She consented to a search of her belongings. Wilson and an assistant searched Redding’s backpack, and found nothing.

Instead of letting Redding go back to class, Wilson ordered the assistant to take her to the school nurse’s office, to search her clothes for pills. The assistant and the nurse made Redding take off all her clothes, except for her panties and bra. No pills were found in her clothes.

Instead of letting Redding go back to class, they made her pull out her bra and panties, exposing her breasts and vagina for search. No pills were found.

Instead of letting Redding go back to class, the officials made her sit in Wilson’s office for hours afterwards, without contacting even her parents.

Not surprisingly, Redding’s mom sued the school, Wilson, his assistant and the nurse for conducting a strip search in violation of Redding’s Fourth Amendment rights.

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Writing for the Court, Justice Souter acknowledged that school searches are held to a lesser level of suspicion than the probable cause ordinarily required, per New Jersey v. T.L.O., 469 U.S. 325 (1985). And the facts that can give rise to this suspicion depend on the circumstances of the particular case, per Ornelas v. U.S., 517 U.S. 690 (1996). The standard for a school search could be described, he said, “as a moderate chance of finding evidence of wrongdoing.”

Wilson had enough suspicion to search Redding’s backpack and outer clothing, Souter held, because Redding was friends with Marissa Glines, the girl who’d been caught with the pills. Glines had Redding’s day planner on her when she was caught. Glines and Redding were part of a group of girls who had been rowdy at a dance, and who were tied to alcohol and cigarettes found in the girls’ bathroom at that dance. Redding had thrown a pre-dance party where alcohol had been served. And Glines said that Redding had given her the pills. All of that was enough, concluded Souter, to give Wilson reasonable suspicion that Redding had given out the pills.

That reasonable suspicion logically led to a reasonable suspicion that Redding possessed more pills. That certainly justified a search of her backpack and outer clothing in the privacy of Wilson’s office. “If Wilson’s reasonable suspicion of pill distribution were not understood to support searches of outer clothes and backpack,” opined Souter, “it would not justify any search worth making.”

But the strip search (and Souter took time to say that this search was indistinguishable from a full strip search, based on both subjective and objectively reasonable societal expectations of personal privacy)…

Subjectively, Redding had an expectation of privacy against such a search, which to her was “embarrassing, frightening, and humiliating.” Objectively, that expectation was reasonable, as like other adolescents her emotional vulnerability only intensified the intrusiveness of a strip search, which “can result in serious emotional damage.”

Indignity alone doesn’t make a search unconstitutional, of course. But the intrusiveness must be proportionate to the suspicion, taking into account the age and sex of the student, along with the nature of the suspected offense.

Here, the suspicion was that Redding had pills that were the equivalent of two Advil, or one Aleve. Wilson had to know that the threat from such pills was negligible, and he had no reason to suspect that anyone had such pills in large enough quantities to harm anyone. So the suspected threat was minimal.

Also, Wilson had no reason to suspect that Redding “was hiding common painkillers in her underwear.” General “common knowledge” that kids sometimes hide contraband in their underwear is not enough. He had to have some actual reason to think that Redding was doing that, and there was no reason to think that at all. Wilson hadn’t even bothered to find out when Glines claimed to have received the pills from Redding — it could have been days before.

So Wilson had no reason to believe that any students were in danger. And he had no reason to believe that Redding had any pills in her underwear. For those reasons, the search was unreasonable, and therefore unconstitutional.

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Justices Stevens and Ginsberg would not have granted qualified immunity to the school officials in this case. Their take was that this law was not unsettled, but was in fact clear. “Nothing the Court decides today alters this basic framework,” wrote Stevens. “It simply applies [existing caselaw] to declare unconstitutional a strip search of a 13-year-old honors student that was based on a groundless suspicion that she might be hiding medicine in her underwear.”

Ginsberg, who had given reason to believe she doubted that the male Justices fully appreciated how this would affect a 13-year-old girl, wrote that “Wilson’s treatment of Redding was abusive, and it was not reasonable for him to believe that the law permitted it.”

Justice Souter felt that the law really was unsettled, however, as the Sixth and Eleventh Circuits had permitted such strip searches in the past, and there were numerous decisions in the lower courts drawing similar and reasoned conclusions. So this case settled the issue, but it would be wrong for school officials to be personally liable for damages in light of the lack of uniformity in the law till now.

Still, he said, “parents are known to overreact to protect their children from danger, and a school official with responsibility for safety may tend to do the same. The difference is that the Fourth Amendment places limits on the official, even with the high degree of deference that courts must pay to the educator’s professional judgment.”

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Justice Thomas also wrote a separate opinion. It was technically a concurring opinion, but he only agreed that the school officials were entitled to qualified immunity here. As to the big issue, Thomas flatly concluded that there was no Fourth Amendment violation.

Thomas felt that it was “an unjustifiable departure from bedrock Fourth Amendment law in the school setting” to require a search to be proportionate to the danger to other students, and that there be reason to suppose that the pills would be found in the private areas searched.

All that was needed, according to Thomas, is that the officials search in a location where the pills could have been located. If there is reason to suspect that a student had contraband, which all the Justices agree Wilson had, then the officials should be allowed to search any place where the student might have hidden the pills. The strip search here, therefore, ought to have been considered reasonable in scope.

In a long and carefully-argued 22-page opinion, Justice Thomas made a good point that today’s decision actually changes the law — it does not merely clarify it. The law till now has afforded school officials great deference to act in loco parentis, and the courts have wisely stayed out of substituting their own judgment for that of the school officials entrusted with the safety of our children. Today’s decision now opens up school searches to second-guessing by the courts. And, as we ourselves predicted above, this is going to have a chilling effect on even those searches which the law would have allowed.

Today’s decision, warned Thomas, means that the judiciary is “essentially seizing control of public schools,” and teachers will not now be able to “govern their pupils, quicken the slothful, spur the indolent, restrain the impetuous, and control the stubborn, by making riles, giving commands, and punishing disobedience without interference from judges.”

“By deciding that it is better equipped to decide what behavior should be permitted in schools,” concluded Thomas, “the Court has undercut student safety and undermined the authority of school administrators and local officials. Even more troubling, it has done so in a case in which the underlying response by school administrators was reasonable and justified.”

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We actually agree with Thomas that the Court has changed the rules, and that it will have a chilling effect. But we still think the Fourth Amendment requires precisely the justifications that the Court has now imposed.

It’s a balancing of interests. We happen to think that society would rather protect the privacy interest that adolescents won’t be strip searched in school, without proportionate concern for safety and without reason to believe the search will actually find anything. Thomas thinks that it’s more important to society to get the evidence that would come from searching anywhere that suspected contraband might be found, once it is suspected.

Thomas’ underlying principle here, we believe, is just not in sync with the general principles of our society. So although his predictions are probably true, the risks he suggests are simply those that society is willing to accept in exchange for the privacy rights protected by the Constitution.