The Criminal Lawyer

“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 unworkable. At oral argument on January 11, it sounded like Justice Alito, at least, was buying into that argument (Tr. at 16, lines 16 to 18). And there was hope that Justice Sotomayor would be that one extra vote to undo Melendez-Diaz.

In our previous post, we pointed out various reasons why such hopes weren’t based in reality, and why the claims of expense and burden don’t hold water. We seriously doubt that anyone at the Supreme Court bothers to read this blog. But these observations are fairly self-evident, we think.

So it was no surprise to see a one-sentence smackdown from the Supreme Court this morning:

We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009).

It is so ordered.

In other words, if the states do not put the chemist on the stand in the People’s case, then they violate the Confrontation Clause. End of story. Bureaucratic convenience does not trump individual rights.

As for all those prosecutors’ offices who whine that it can’t be done? We’d ask them to look at New York City, whose courts are far busier than theirs ever will be, and who nevertheless manage the job as a matter of routine. Defense counsel often stipulates to the substance being what it is, and when there is no stipulation then getting the chemist to court is no more challenging than any other police employee who’d rather not be there. It’s just part of the job, and amazingly enough it works out just fine.

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.

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.

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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.)

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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…

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.

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.

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?

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.

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.

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

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.

* * * * *

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.

* * * * *

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.

* * * * *

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.

In a solid 7-2 decision this morning, the Supreme Court ruled that jurors in a RICO case can infer the existence of a racketeering enterprise simply based on its activity, and don’t need evidence of any separate structure or hierarchy.

This clears up some misconceptions that have been floating around for a while about what the RICO statute actually says. We’ve always thought that the language was fairly straightforward, but have been amazed at the variety of interpretations we’ve heard from prosecutors, defense attorneys and judges.

Writing for the majority in Boyle v. United States, Justice Alito ruled that an enterprise must have a structure of some kind, but not necessarily one that is separate and distinct from that “inherent in the pattern of racketeering activity in which it engages.”

Boyd was one of several people who took part in dozens of bank robberies across several states in the early 1990s. There was a “core group” of conspirators, and others would be brought in as needed. The crimes followed a pattern, but the offenders weren’t formally organized. It was a loose and informal association, without any hierarchy or long-term arrangement.

At trial, Boyd’s judge told the jurors that the government had to prove the existence of a RICO enterprise by proving that:

(1) There [was] an ongoing organization with some sort of framework — formal or informal — for carrying out its objectives; and

(2) The various members and associates of the association function[ed] as a continuing unit to achieve a common purpose.”

The judge also told the jury that it could:

find an enterprise where an association of individuals, without structural hierarchy, [had been formed] solely for the purpose of carrying out a pattern of racketeering acts;

[and that]

Common sense suggests that the existence of an association-in-fact is oftentimes more readily proven by what it does, rather than by abstract analysis of its structure.

Hewing to a common misconception about what RICO requires, Boyd’s counsel wanted instead an instruction that the government had to prove that the enterprise had:

a) An ongoing organization;

b) A core membership that functioned as a continuing unit; and

c) An ascertainable structural hierarchy distinct from the charged predicate acts.

But the judge’s instruction came almost straight out of the Supreme Court’s decision in U.S. v. Turkette, 452 U.S. 576 (1981), which held that “an enterprise includes any union or group of individuals associated in fact,” and that RICO targets “a group of persons associated together for a common purpose of engaging in a course of conduct.” Such an enterprise could be “proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.”

The newly-clarified rule of this case is that:

(1) An enterprise must have a structure. This essentially means that there have to be different parts that make up the whole, as well as a pattern of relationships among the members of the group.

An association-in-fact enterprise (one that exists without having been formally established as a legal entity) must have at least three structural features (though the word “structure” is not necessary in jury instructions). These features are: (1) A purpose; (2) Relationships among those associated with the enterprise; and (3) Longevity sufficient to permit the associates to pursue the enterprise’s purpose.

There is no requirement that a structure must have a hierarchy. Nor need there be role differentiation, a unique modus operandi, a chain of command, professionalism and sophistication of organization, diversity and complexity of crimes, membership dues, membership rules and regulations, uncharged or additional crimes aside from predicate acts, an internal discipline mechanism, regular meetings regarding enterprise affairs, an enterprise name, or induction/initiation ceremonies and rituals. All that is required is a continuing unit that functions with a common purpose, no more.

(2) It is redundant and misleading to require a jury to find the existence of an “ascertainable structure.” If a jury finds that there was a structure beyond a reasonable doubt, then of course it was ascertainable, because they found it. Requiring this extra verbiage implies that the structure be something more than what is required.

(3) The existence of an enterprise is, of course, a separate element to be proved. That does not mean, however, that the existence of the enterprise must be separate from the racketeering activity in which it engaged.

This stuff isn’t rocket science. It’s not even Logic 101. But we’ve heard prosecutors, judges and defense counsel mangle this often enough that the Court’s clarification today is refreshing.

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Speaking of mangling, however, two Justices did dissent. Stevens was joined by Breyer in opining that an “enterprise” refers only to “business-like entities that have an existence apart from the predicate acts committed by their employees or associates.”

This is the most common of the misconceptions we’ve come across regarding RICO. Still, it is surprising to hear it come from two such respected jurists. We think Stevens and Breyer do know better.

Stevens has been doing a lot of forceful dissenting in this term, and that has long led us to believe he’s putting the finishing touches on his legacy before retirement. If anyone had announced their retirement this term, we’d have certainly expected Stevens rather than Souter, for this reason alone. We still believe, however, that he’s preparing for retirement, and wants to get his jurisprudence out there.

On this matter, however, we don’t see this particular dissent coming back to form the basis of a new rule somewhere down the road. He focuses on an interpretation of Congress’ intent when it drafted the statute, an interpretation that is dubious at best. And he makes the unfortunate mistake of conflation: the existence of an enterprise is a separate element of the offense, and so therefore the enterprise must exist separately from its activities.

In other words, an enterprise that does nothing else but work to achieve its criminal ends cannot be a RICO enterprise. That’s just absurd. And that is certainly not what Congress intended.

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.

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In Michigan v. Jackson, 475 U.S. 625 (1986), the Burger Court ruled that police cannot start questioning a defendant after that defendant has appeared in court and requested a lawyer. “If police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.”

This morning, a 5-4 Supreme Court overruled Jackson.

Writing for the majority, Justice Scalia found that the Jackson rule is simply unworkable. And anyway, the existing rule of Edwards v. Arizona, 451 U.S. 477 (1981) already provides the necessary protections, so the Jackson rule is unnecessary in the first place. Scalia summed it up this way:

This case is an exemplar of Justice Jackson’s oft quoted warning that this Court is “forever adding new storeys to the temples of constitutional law, and the temples have a way of collapsing when one storey too many is added.” Douglas v. City of Jeannette, 319 U.S. 157, 181 (1943)(opinion concurring in result). We today remove Michigan v. Jackson’s fourth storey of prophylaxis.

The defense got the reversal it wanted, but not the rule it sought. The defense didn’t want Jackson overruled — it wanted the case to be interpreted as meaning the police can never seek to interrogate a defendant once counsel is assigned, whether the defendant asked for it or not.

Instead, the Court said we already have “three layers of prophylaxis” that protect defendants here, and we don’t need another one. Under the rules of Miranda, Edwards and Minnick, a defendant can tell the police he doesn’t want to speak to them without a lawyer present, and that shuts down any questioning. And the police cannot re-start it later by trying to Mirandize him again in the hopes that this time he waives the right to counsel. These protections already exist without Jackson, so the overruled case “is simply superfluous.”

The overruling wasn’t really a surprise. Sure, the briefs didn’t really talk about it, but it was strongly hinted at during oral argument back in January. More on that in a minute.

The state of Louisiana clearly lost, and its high court got reversed. But the defense didn’t get the outcome it wanted, and the Court isn’t about to make that rule any time soon, now. The defendant does get a second bite at the apple, however — the defense relied understandably on Jackson and not Edwards in its appeal below, so the Court felt it was best to remand and give the defense the chance to argue based on the Edwards rule.

* * * * *

In today’s case, Montejo v. Louisiana, Jesse Montejo was suspected of the robbery and murder of his former boss. Montejo waived his Miranda rights, and admitted killing the victim during a botched burglary. He indicated that he’d thrown the murder weapon into a lake.

This happened in Louisiana, which requires a preliminary hearing called a “72-hour hearing,” the purpose of which is the appointment of counsel. At that hearing, Montejo was charged with the murder, and the court ordered the appointment of a lawyer. Shortly after the hearing, but before the Indigent Defender was assigned, the police Mirandized Montejo again, and took him out to help them find the murder weapon. During the trip, Montejo wrote a letter of apology to the victim’s widow.

At trial, the letter of apology was admitted into evidence over the defense’s objection. Montejo was convicted and sentenced to death.

Montejo appealed, arguing that Jackson required that the letter be suppressed. The Louisiana Supreme Court said no, the Jackson rule only protects defendants who actually requested a lawyer at the hearing — it doesn’t shield defendants from questioning if, like Montejo, they just stand mute and the court orders the appointment of counsel sua sponte. The court felt that the real issue was whether he’d waived his right to have counsel present during the excursion, and Montejo had done so when he was Mirandized that second time.

Montejo filed for cert, arguing that the right to counsel, guaranteed by the Sixth Amendment, goes into effect upon the appointment of counsel, whether the defendant affirmatively asked for it or not. The other four states which had considered this, as well as the 11th Circuit, had ruled his way. And it made more sense to have a bright-line rule like this than to have a case-by-case analysis to determine whether a defendant said the magic words at arraignment which would grant him the right to counsel. A rule requiring defendants to affirmatively accept the appointment of counsel would simply not be administrable, he argued. One thing the briefs did not request was that Jackson be overruled.

During oral arguments, however, Scalia, Roberts and Alito asked whether the Jackson rule ought to be overruled. They suggested that the rule was overbroad, in that it would not allow defendants to voluntarily waive their Sixth Amendment right to counsel after getting a lawyer.

The state, which had submitted very thin briefs relying largely on dicta, didn’t do well at oral argument. Scalia and Kennedy quickly pointed out the absurdity of requiring “a formality on top of a formality” here, and the state only compounded the absurdity by seeming to suggest that defendants would have to keep requesting counsel every time the police sought to question them after arraignment.

The state also made the classic blunder of arguing with a Justice who had lobbed a softball question, in the attempt to help out the lawyer. Alito and Roberts both offered softballs to get the state to point out that Jackson prevents the police from initiating contact without the presence of counsel, but allows the defendant to initiate discussions. Instead, the state’s lawyer fought them, insisting that Jackson is only supposed to make sure the police don’t “badger” defendants who have a lawyer. The state then made the absurd argument that the Sixth Amendment protections ought to vary from state to state — states that make defendants ask for counsel would have Sixth Amendment protections, but states that appoint counsel whether a defendant asked for it or not would not have Sixth Amendment protections.

* * * * *

Given what happened at oral argument, today’s decision is hardly suprising. Writing for the majority, Scalia said “we agree that the approach taken [by the Louisiana Supreme Court] would lead either to an unworkable standard, or to arbitrary and anomalous distinctions between defendants in different States. Neither would be acceptable.”

Louisiana’s distinction between defendants who assert their right to counsel and those who do not “is extremely hazy when applied to States that appoint counsel absent request from the defendant. . . . How does one affirmatively accept counsel appointed by court order?”

Requiring some sort of questioning at every preliminary hearing would be impractical. Those hearings are typically rushed, aren’t even transcribed in many states, and it would be unworkable to try to monitor each defendant’s reaction to the appointment of counsel, if the defendant is even present (which isn’t always the case). Furthermore, how would the police be expected to know what the defendant’s reaction had been, as they can’t be expected to attend these proceedings. Courts would then have to adjudicate whether the police ought to have been able to approach a defendant, which simply adds to the impossibility. So this solution just could not work.

However, even though the Louisiana Supreme Court’s application of Jackson “is unsound as a practical matter,” Scalia couldn’t go along with Montejo’s proposed rule that, once a defendant is represented by counsel, police would not be allowed to initiate any further interrogation. “Such a rule would be entirely untethered from the original rationale of Jackson.”

What Jackson did was to apply the rule of Edwards v. Arizona, 451 U.S. 477 (1981) to the Sixth Amendment. (Edwards involved a defendant who asked for a lawyer when he was Mirandized, so the police stopped questioning, but then the police tried to Mirandize him again, and this time the defendant confessed. The Edwards rule says the police can’t badger the defendant into waiving his rights after he’s asserted them.) All together, the cases mean that if a defendant asserts his right to counsel, and he later waives that right in a subsequent interaction with the police, then that waiver is presumed to be involuntary.

In a situation like Montejo’s, where the defendant was appointed counsel without ever asking for it, this rule simply doesn’t apply. There was no initial assertion of the right to counsel, so there can be no presumption that a subsequent waiver is involuntary. There is no initial decision that is being changed. There is no indication that the police are overriding the defendant’s free will.

So Montejo’s proposed rule just doesn’t fit with the purpose of the existing law. Instead, it “would prevent police-initiated interrogation entirely once the Sixth Amendment right attaches, at least in those States that appoint counsel promptly without request from the Defendant.”

Instead, wrote Scalia, the existing law we already have under Miranda, Edwards and Minnick is sufficient:

These three layers of prophylaxis are sufficient. Under the Miranda-Edwards-Minnick line of cases (which is not in doubt), a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings. At that point, not only must the immediate contact end, but “badgering” by later requests is prohibited. If that regime suffices to protect the integrity of “a suspect’s voluntary choice not to speak outside his lawyer’s presence” before his arraignment, Cobb, 532 U. S., at 175 (KENNEDY, J., concurring), it is hard to see why it would not also suffice to protect that same choice after arraignment, when Sixth Amendment rights have attached. And if so, then Jackson is simply superfluous.

* * * * *

SO WHAT DOES THIS MEAN?

Here’s a comparison of how the law looked yesterday, and how it looks today:

The right to counsel is triggered…

Yesterday — when you’ve been formally charged, are being interrogated, and now invoke your right to counsel.
Today — when you’ve been formally charged, are being interrogated, and now invoke your right to counsel.

If you invoke your right to counsel…

Yesterday — further discussions are per se excluded, unless you initiate the new contact (Jackson).
Today — further discussions are per se excluded, unless you initiate the new contact (Miranda-Edwards-Minnick).

The Supreme Court this morning exemplified exactly what’s wrong with the death penalty in this country. In a clear effort to avoid a decision that would impose a death sentence, the Court made a nonsense ruling so it could extend the course of appeals — appeals that have already run for three decades. The Court further delayed an outcome, continuing the stress and injustice of uncertainty to the defendant, the victims, and the criminal justice system.

One Saturday afternoon in 1980, Gary Cone robbed a Memphis jewelry store of about $112,000 worth of trinkets. He led a police officer on a high-speed chase through town and into a residential neighborhood. Abandoning his car, he ran off on foot. He shot a police officer who pursued him, and a citizen who tried to stop him. Re-thinking his abandonment of the getaway car, he tried his hand at carjacking, tried to shoot the driver, but was out of ammo.

Cone ran and hid all that day and into the next morning. He then tried to force his way into an old lady’s apartment at gunpoint, but she refused to let him in. The highly-intelligent Vietnam War veteran was foiled again. But later that Sunday afternoon, he broke into the home of an elderly couple, Shipley and Cleopatra Todd, aged 93 and 79, and brutally beat them to death.

After hiding the bodies, ransacking their home, and shaving off his beard, he made his way to Florida. There, he robbed a drugstore, got arrested, and admitted to killing the Todds and shooting the police officer.

In 1982, he was convicted of the murders, after unsuccessfully arguing that he had been on drugs and suffered from post-traumatic stress, and thus lacked the necessary mens rea. He didn’t really present a lot of evidence to back that up. The jury found him guilty, found the requisite aggravating factors, and sentenced him to death.

In yet another bleak example of modern American capital punishment, Cone spent the next 27 years filing appeal after appeal, up to the Supreme Court and back again.

This morning, the Supreme Court ruled on his federal habeas claim. Cone was arguing that the government violated his Brady rights, by withholding evidence material to his mental state.

On direct review in state court, the Tennessee Supreme Court had affirmed the conviction and the death sentence. Cone then filed a petition claiming various violations, including Brady violations. While the petition was pending, he got to see the prosecutor’s case file, and amended his petition to add more detailed Brady claims. He claimed that his thin evidence at trial would have been bolstered by this stuff, had he seen it at the time.

The reviewing court denied the petition, on the grounds that the Brady claims had already been considered and denied. Cone then sought a writ of habeas corpus, seeking relief for the alleged Brady violation. The Sixth Circuit said no to the Brady claim, because the state decision was based on grounds that weren’t applicable in federal court.

Appeals then went back and forth on other matters. In 2001, the Circuit granted relief for ineffective assistance of counsel, but the Supreme Court reversed that in 2002. In 2004, the Circuit granted relief for the use of an unconstitutional aggravating factor, but the Supreme Court reversed that one also.

Back in the Sixth Circuit in 2007 on remand, Cone once again raised the Brady claim. The Circuit again said no, that the claim was procedurally barred, because Tennessee had relied on independent state grounds in its determination of the Brady claim. And in any event, the prosecutor’s files weren’t Brady material in the first place, because nothing in them would have “overcome the overwhelming evidence of Cone’s guilt” and “the persuasive testimony that Cone was not under the influence of drugs.”

On cert to the Supreme Court this time around, Cone argued that the prosecutor’s file contained witness statements and police reports that would have corroborated his insanity defense during the guilt phase, and would have mitigated the aggravating factors during the sentencing phase. He argued that the Tennessee court’s decision did not rest on grounds that precluded federal review, contrary to the Circuit’s finding.

In its decision this morning, written for the majority by Justice Stevens, the Supreme Court ruled in Cone v. Bell that Cone was right — the Tennessee court’s decision did not rest on grounds that precluded federal review. Nevertheless, Cone was still wrong, because the prosecution’s files were not Brady material — the withheld documents simply were not material to any defense based on his mental state.

If Stevens had stopped there, this would have been a unanimous decision.

Instead, however, Stevens screwed up. “While we agree that the withheld documents were not material to the question whether Cone committed murder with the requisite mental state,” he wrote, “the lower courts failed to adequately consider whether that same evidence was material to Cone’s sentence.”

Say what? It clearly wasn’t material to the issue of guilt, but the appellate courts were too hasty in saying it was not material for sentencing? Stevens is basically saying, the files weren’t Brady, because they weren’t material to the issue of his mental state. But on the other hand, they might have been material to the issue of his mental state, so we’re remanding for a do-over.

So, in all these years of considering this very issue on appeal, the Circuit got it right when it decided that the files simply weren’t material. But in all these years of considering this very issue, the Circuit acted too hastily in deciding that the files weren’t material.

That simply doesn’t make sense, and in his dissent (joined by Scalia), Thomas makes that exact point. Alito felt the same way, and dissented to that extent, but concurred with the rest of the decision.

Chief Justice Roberts felt the same way, but wasn’t moved strongly enough to dissent, so he merely wrote a concurring opinion voicing his concerns. Instead, “this is what we are left with,” he wrote: “a fact-specific determination, under the established legal standard, viewing the unique facts in favor of the defendant, that the Brady claim fails with respect to guilt, but might have merit as to sentencing. In light of all this, I see no reason to quarrel with the Court’s ruling on the Brady claim.

That’s just weak. He and the rest of the majority clearly punted the issue. There is no distinguishing difference between the guilt phase or the sentencing phase, when determining whether something was Brady or not. Either it’s material or it isn’t. The issue in both was whether Cone’s mental state was impaired, and the courts seem to agree that the files were immaterial to that issue.

It’s clear what’s really going on, of course: the majority didn’t want to suck it up and just deny the claim. To do so would be to impose a death sentence, and the Stevens majority doesn’t want to do that unless there’s no way out for them. But they found a way out here. Not a particularly meaningful one, but it was all they needed. So they weaseled out of it, and kicked it back to the Sixth Circuit to do their dirty work for them.

We predict that the Circuit will simply make the same finding again on remand, and spill some more ink to spell out that its finding applies to both the sentencing phase as well as the guilt phase. Then today’s majority will be able to feel a little better about themselves when they affirm, and sentence Cone to death.

But delaying this foregone conclusion is unjust. It’s exactly what’s wrong with capital punishment in this country. There is no deterrent effect, because there is no predictability as to whether capital punishment will be carried out, and any such punishment is too far off in the dim and distant future to be meaningful. There is clearly no rehabilitation or attempt to rehabilitate, as the alternative is just life in prison. There is no just retribution, as society does not gain anything from punishment that neither certain nor contemporaneous.

Until the courts can work out a fair way of resolving death-penalty appeals justly and swiftly, the death penalty will continue to be an inhumane sentence in this country. Inhumane not only to defendants, but to the families of their victims, and to the community at large.

The Supreme Court took on five Fourth Amendment cases this term. Four have been decided, and the fifth was argued on Tuesday. Although it may be premature to do so before the last decision comes down, we think it’s safe to draw some conclusions about the Court’s jurisprudence here, and predict what it might mean for the course of criminal justice.

The Fourth Amendment protects citizens against unreasonable searches and seizures. Like most other protections in the Bill of Rights, the whole point is to ensure that the State does not use its awesome power to override the necessary liberties and free will of individuals in a just society. The Bill of Rights prohibits the government from limiting ideas and their expression, from preventing individuals from arming themselves, from forcing soldiers into people’s homes, from extracting confessions by means that override the individual’s free will, from conducting secret “Star Chamber”-like trials or otherwise deny fair trials to defendants, from imposing indecent punishment, etc. If you sum up all the injustices that individuals face under medieval or tyrannical rule, the Bill of Rights pretty much says the U.S. government shall not do such things.

“Unreasonable” search & seizure basically means that, as a baseline, police ordinarily need to get a warrant first, by proving to a judge that they are more likely than not to find what they’re looking for, and that they’ll find it in the place they plan to look. There are exceptions to the warrant requirement, of course. Most searches don’t take place pursuant to a warrant, but under one of the exceptions.

If a person consents to a search, then no warrant is needed. Neither is a warrant needed if there is good reason to believe that evidence is going to be lost, or someone’s going to get hurt, if the cops take the time to get a warrant. There are various other exceptions.

The devil is in the details, of course. So the more exceptions you carve out from the general rule, the more room for error you create, and the more gray areas of confusion can pop up. Over the past few decades, various Fourth Amendment exceptions have indeed created confusion, gray areas, and absurdities.

The Supreme Court has taken the opportunity this term to attack those confusions, gray areas and absurdities head on.

On Tuesday, the Court ruled in Arizona v. Gant with respect to vehicle searches. (We reported on this here.) Back in the 60s, a warrant exception was carved out for searches of an individual and his “wingspan” — the area in his immediate reach — pursuant to a lawful arrest. The purpose was to ensure the safety of the officers and to preserve evidence. So long as the arrest was lawful, the search was lawful. Fast-forward to just after Reagan’s first swearing-in, when the Court expanded the search-incident-to-lawful-arrest to include the search of the passenger compartment of a car in which the arrestee had been riding.

Almost immediately after that ruling, everyone started to get the idea that cops could search the passenger area even after everyone was out of the car. The “wingspan” concept was lost, and instead a bright-line rule arose that, if the cops arrested someone who had been inside a car, then that car could be searched, period. Even after that person had long ago left the scene.

Some policy-makers like bright-line rules, because they require no thought. Individual circumstances need not be considered. An action that might not make sense, upon casual reflection, is still taken, because that’s the rule. If you don’t trust people to be able to weigh circumstances reasonably, then you give them bright-line rules.

And so it was that the police in Gant found themselves searching his car. Gant had already been arrested, handcuffed, and locked in a police cruiser, so the interior of his car was certainly no longer within his reach. So there was no reason to believe that he could destroy any evidence in the car or use something in the car to hurt the police. And he had been arrested for driving with a suspended license, not the kind of crime involving physical evidence, so there was no reason to believe that any evidence of that crime would be found in the car. In fact, the cops admitted on the stand that the only reason they search the car after the arrest was “because the law says we can do it.”

That was absurd. It’s an absurdity that just sort of happened, too. Nowhere in the 1981 Belton case did the Court lay out a bright-line rule. But that rule became the common interpretation, and has been the common interpretation for a quarter of a century.

On Tuesday, however, the Court finally stepped in to undo the absurdity. In a narrowly split 5-4 decision, the Court ruled that the police are not allowed to search a car simply because they made an arrest. The bright-line rule was thrown out the window. Interestingly, the case made for strange bedfellows. Contrary to popular expectation, Scalia and Thomas joined the pro-defendant side, and Breyer joined the pro-government minority. Scalia, in fact, felt that the majority opinion didn’t go far enough to limit the government’s power to search a car after an arrest.

The dissent essentially boiled down to a version of stare decisis — the common interpretation has been around for so long, that it has become the law of the land, and should be treated as such. That’s an interesting, but flawed, rationale. Stare decisis has to do with longstanding judicial precedent, not with some sort of jurisprudential adverse possession. Common practice does not equal legal precedent. Just because nobody has bothered to claim till now that the common interpretation was wrong, that doesn’t mean that nobody ought to be able to claim that now.

Anyway, the rule now is that the bright-line rule is no more. Cops can only search the passenger compartment if they have reason to believe — on a case-by-case basis — that the arrestee can still gain access to the car or that the car contains evidence of the crime for which he had been arrested. They can’t go looking just because the guy was arrested. They can’t go looking for evidence of other crimes. (They can still, however, either get a warrant, or impound the car and do an inventory search.)

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Argued the same day as Gant was decided was Safford Unified School District v. Redding. This also has to do with bright-line rules, in a way.

For context, the oral arguments were made almost to the day on the 10th anniversary of the Columbine shootings. Ten years ago, a couple of juvenile delinquents killed 12 people in a high school, the worst such violence that the U.S. has ever seen.

Due to the resulting hysteria and misinformation about the events, schools nationwide began passing bright-line “zero tolerance” rules out of fear that similar crimes might happen to them. Although it is now known that the killings were totally random, there arose a misconception that the killers sought out specific categories of victims. This led to panicked overreaction whenever a kid was found to have identified people in the school that they didn’t like. In fact, the killers wanted to kill everyone, setting (faulty) bombs to go off in the cafeteria (the fact that nobody every mentions the totally obvious similarities to the plot of the 1988 movie “Heathers” is beyond us).

Zero tolerance policies resulted in the expulsion of even little kids for bringing anything remotely resembling a weapon to school. Even when doing so was clearly absurd, as with water pistols, plastic army men, miniature toys, eating utensils, and the like.

Zero tolerance policies went after anything that might even slightly imply to the most paranoid hysteric an imaginary threat of unlikely harm to students or teachers. This included little girls hugging (because touching without permission can sometimes be a bad thing, all touching must be bad!). It included bringing a cake knife to school to cut a cake one had also brought to school.

And drugs are bad, by definition. So zero-tolerance included bringing any drugs to school. Passing out Tylenol can get kids expelled. It’s serious!

These bright-line zero-tolerance rules are imposed because school administrators are afraid. They’re afraid of their students. And they’re afraid of having to act rationally on a case-by-case basis. So they just over-react to everything, and establish bright-line rules so they don’t have to think.

And so we have Safford Unified School District v. Redding.

In Safford, we have a middle school (also in Arizona), where school authorities caught a 13-year-old girl with (gasp!) prescription-strength ibuprofen. This was a zero-tolerance school, and even though there is no way that ibuprofen counts as a dangerous drug, it was a bright-line prohibited medicine. So this girl was in serious trouble.

The girl (gasp!) pointed the finger at someone else. She said that another girl, Redding, had given her the medicine.

School officials have the authority to preserve the health and safety of their students. Most would say they even have the responsibility to do so. So it is not suprising that the school investigated the culprit’s claims.

Without taking the time to get a warrant, and acting only on the say-so of the girl they actually caught with the medicine, school officials searched Redding’s backpack, and found nothing. Then they took Redding to the nurse’s office, and searched her outer clothing. Nothing. Then they had her stretch out her bra and panties, exposing her breasts and genitals. Nothing. They shook out her underclothes, and her body was inspected by the nurse and another school official. Nothing. Then they put her in the principal’s office, and left her there alone for a few hours, without calling her mother or anyone else. No drugs of any kind were found during all this searching, and nobody else was strip searched.

Redding sued, claiming that her Fourth Amendment rights had been violated when she was subjected to this strip search.

The school district seeks a bright-line rule that permits strip searches whenever a school has reason to suspect that a student has prohibited contraband on them. At the same time, and without appearing to notice the inherent hypocrisy, they argue that the courts should not second-guess the judgement of school officials. Here, they had a reason to suspect Redding, and that should be enough to let them strip search her.

Now, if the Court is inclined to lay down a bright-line rule at all here, that surely is not going to be the rule they impose. There is no way the Court is going to let school officials make an unreviewable decision as to whether there’s reason to conduct a given strip search or not.

Instead, they’d probably impose a bright-line rule requiring first that there be sufficient credible evidence — first, that this student has drugs in the first place; and second, that the drugs are concealed in the private regions of the student’s body.

But then, in addition to an evidentiary requirement, they’d probably have to include a proportionality requirement as well. The Court is unlikely to permit extraordinarily invasive searches for contraband that poses no real threat. Strip searches for plastic toys would be within the realm of lawful possibility, otherwise.

But if your bright-line rule requires weighing evidence on a case-by-case basis, and weighing proportionality on a case-by-case basis, then it really isn’t a bright line at all, is it?

No, we’re going to go out on a limb here and predict that the Court will reject any bright-line rule, and instead impose a balancing test. A good rule will require that strip searches are only allowed when there is credible evidence that the student is concealing contraband in or on her private body parts. Not just the say-so of another student trying to direct blame onto someone else.

And a good rule will require that a strip search be proportionate to the danger. It’s more reasonable if the kid’s believed to have explosives strapped to his body (a la Christian Slater in “Heathers”), or a weapon in his underwear, or decks of heroin in his nether regions. It’s not so reasonable if the kid’s only believed to possess a toy, or harmless medicine, or even a list of kids he doesn’t like.

A good rule will be fact-specific, and will require schools to actually exercise good judgment. A rule that lets them just act without thinking would be contrary to the direction this Court seems to be taking with its Fourth Amendment cases.

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That leads us to the third Arizona case in this term’s Fourth Amendment decisions. On January 26, Justice Ginsburg wrote a unanimous decision for the Court in Arizona v. Johnson (which we wrote about here).

In Johnson, the Court clarified that a police officer can do a pat-down search, feeling someone’s outer clothing for weapons, if the officer has reason to believe that the person is armed and poses a threat to safety. The police don’t lose that ability to protect their own safety when other circumstances change.

Ginsburg pointed out that this really shouldn’t have been a point of confusion. A long line of cases, starting with Terry v. Ohio, clearly say cops can pat someone down for weapons if they have reason to believe the person’s armed and dangerous. And yet there obviously was confusion, evidenced by the Johnson case itself.

In Johnson, a female officer with gang experience was involved in a traffic stop. Before the stop, she had no reason to believe the passengers had committed any crimes. But during the stop, she saw things that led her to believe that one of the passengers was a gang member. She talked to him about things unrelated to the reason for the traffic stop, and some of the things he said led her to believe that he was armed and dangerous. So she asked him to step out of the car, to talk about things out of earshot of the other suspected gang members, then patted down his clothing and found a gun in his waistband. The passenger was later convicted of possessing the gun.

The Arizona Court of Appeals ruled that the officer lost her authority to pat him down once she started talking to him about matters unrelated to the traffic infraction. Even though she had reason to believe he was armed and posed a threat to her, the fact that she had talked to him about other things erased her ability to pat him down for her own protection.

The unanimous Supreme Court cleared that right up. The passenger was already seized, and not free to leave. The fact that he was being asked questions about other things didn’t change that. And the officer did have reason to suspect that he was armed and dangerous, and the topic of conversation didn’t change that.

Now in one respect, this is a bright-line rule. And as we pointed out in our previous post, we have problems with this bright-line rule, insofar as it has to do with whether a person involved in a traffic stop is free to leave. Under the Court’s rule, the answer is simply no, until the stop is over or the police let him go.

But the meat of the decision is not a bright-line rule. It is yet another case-by-case analysis: did the officer have reason to believe there was a weapon and that she could be in danger? The ruling simplifies the analysis by removing other considerations from the equation, as being irrlevant. The bright-line issue of whether someone is seized or not really has nothing to do with the core issue. And the Arizona court’s issue of whether the conversation has switched topics is beyond irrelevant.

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The fourth case this term was Herring v. United States, which had to do with the exclusionary rule. (We wrote about this decision here.)

In Herring, the Court ruled that the exclusionary rule doesn’t apply when a policeman acts on flawed information from law enforcement in the next county. Herring, a character who’d had several run-ins with local law enforcement in Alabama, went to get his truck out of impound. The officer ran a check to see if any warrants were outstanding for him. There was a hit for an outstanding warrant in the next county. Herring was arrested on that warrant, and drugs were found. It turned out that the neighboring county’s records were erroneous, and there wasn’t any warrant.

Writing for the narrow 5-4 majority, Chief Justice Roberts ruled that the error was too separate from the search and seizure of the drugs. The officer who conducted the search didn’t have anything to do with the error, and it would be pointless to attribute it to him. Thinking of the exclusionary rule as a rule of deterrence, Roberts said it should only apply when excluding seized evidence would deter wrongful conduct. So the police conduct would have to be sufficiently deliberate that it could be deterred. And the conduct would have to be sufficiently wrongful to be worth the loss of evidence.

It’s easy to see where the majority was going here. It’s common for people to think of the exclusionary rule as balancing, on the one hand, our concern for protecting individuals against unlawful government intrusions, against our concern against “letting people off on a technicality” on the other hand. So here, the arresting officer wasn’t being negligent. He acted totally reasonably, relying on a criminal justice database. Excluding this evidence wouldn’t deter future reliance on criminal justice databases, and we actually don’t want that kind of reliance to be deterred in the first place.

But that common way of thinking really is a misconception. The exclusionary rule is not a rule of deterrence. And thinking of it that way can lead to confusion.

The exclusionary rule is the typical remedy for police violation of Fourth Amendment rights, by suppression of the evidence that would not have been gathered but for the violation. This protects the justice system, by ensuring that the maximum lawfully-gathered evidence is available, while ensuring that defendants aren’t prosecuted with unlawfully-gathered evidence.

Police officers and departments are not punished for violations, because that would be deterrent — it would create an incentive to avoid borderline situations where evidence could have been obtained lawfully.

Rather than do that, the exclusionary rule lets officers go right up to the line of what they’re allowed to do, and only takes away what they shouldn’t have been allowed to get, the evidence they got by crossing the line. The get to keep the other evidence.

The exclusionary rule is not an individual right, but is rather a remedy that has been crafted over generations of thoughtful jurisprudence. It simultaneously maximizes protection of the individual’s rights, and society’s interest in law enforcement. It balances two powerful and competing interests, and it does the job elegantly. As such, it is a beautiful rule, but one that is nevertheless criticized — both by law-and-order types and by defendant-rights types — when its role is misunderstood. Unfortunately, it is misunderstood all the time, and the Supreme Court itself did so here.

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The last case is Pearson v. Callahan, decided on January 21. It involved Utah police officers who conducted a warrantless search of a home. There were no exigent circumstances. Instead, they thought their conduct was lawful under the “consent once removed” doctrine.

This is a legal doctrine that had been gaining traction out west (and in New Jersey) since the early 1980s. The way it worked here was, they flipped a suspect into an informant. Then they sent the informant to his drug spot, the defendant’s home. The informant was invited in, saw drugs, and went back to tell the cops what they’d seen. The defendant had consented to allow the informant into his home, and that consent was deemed transferred to the cops, as “consent once removed,” and so the defendant was deemend to have consented to the police entry into his home. Under that doctrine, he’d consented, so they didn’t need a warrant.

The cops were sued, and the issue was whether they had qualified immunity here. The Court’s unanimous decision, written by Justice Alito, mostly dealt with a procedural issue raised sua sponte. But in the end they briefly mentioned the underlying issue of whether the police acted lawfully here.

The test for qualified immunity was whether the unlawfulness of the officers’ action was clearly established at the time of their actions. If it was clearly unlawful, then they did not have qualified immunity.

As it happened, however, there was a line of cases that instead established that this kind of “consent once removed” search was fine back in 2002, at least out west. So the police were entitled to qualified immunity.

Disappointingly, the Court did not deal with the issue of whether this kind of attenuated consent is actually proper now in 2009. So there’s really no meat to this decision, which is why we saved it for last.

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All in all, it looks like the Court is shying away from any judicial activism here. Rather than creating broader interpretations of individual rights, or establishing greater police powers, the Court is focusing on clarifying existing rights and powers. And instead of expanding the existing rules, the Court is simply trying to rein in misconceptions and absurdities.

Part of that trend seems to be the relaxing of bright-line rules. Bright lines are great when you don’t want people to have discretion, when you don’t trust them to think, or they’re not trained to understand the issues. You get some efficiency that way. But in real life, facts don’t always fit within those lines, and an unthinking application of bright-line rules will sometimes result in injustice. This Court seems to be moving away from the seeming mass efficiencies, in favor of individual justice.

Well, we like that very much.

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.

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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.

Voting 7-2, the Supreme Court today ruled that a defendant cannot appeal when the prosecution reneged on a plea bargain, unless the issue was preserved before the trial court.

In his majority opinion for Puckett v. U.S., Justice Scalia cleared up a split among the circuits. There had been differing opinions on whether this situation was one of the exceptions to the general rule requiring that issues be preserved below. He sort of signaled his take on the issue with his first sentence: “The question presented by this case is whether a forfeited claim that the Government has violated the terms of a plea agreement is subject to the plain-error standard of review set forth in Rule 52(b) of the Federal Rules of Criminal Procedure.”

The facts of the case are going to sound familiar to anyone who’s been doing criminal law for very long. The defendant was indicted for armed robbery, and negotiated a plea deal. As part of the deal, the prosecutors promised to tell the court that he “has demonstrated acceptance of responsibility and thereby qualifies for a three-level reduction…” But then, after the plea but before sentencing, the defendant got in trouble again, this time for a scheme to defraud the Postal Service. The prosecutors changed their mind, in light of this new information, and told the sentencing court that the defendant should *not* get credit for accepting responsibility.

The defense attorney called foul, and reminded the court of the terms of the plea agreement. The judge turned to the prosecutor, who dismissed it as having been written a long time ago, and the new crime changed the situation. The judge decided that he couldn’t grant a reduction, and wouldn’t even if he could, given the new crime. He did impose a sentence at the low end of the range, however.

“Importantly,” to Scalia, “at no time during the exchange did Puckett’s counsel object that the Government was violating its obligations under the plea agreement by backing away from its request for the reduction. He never cited the relevant provision of the plea agreement. And he did not move to withdraw Puckett’s plea on grounds that the Government had broken its sentencing promises.”

On appeal, the Fifth Circuit held that error had occurred, and it was obvious, but it did not cause prejudice, so it was not “plain error.” Basically, the defendant couldn’t demonstrate that his ultimate sentence would have been any different, whether the prosecution had recommended the reduction or not, given the judge’s disinclination to grant it in the first place.

But there was a conflict among the circuits as to whether the plain-error test applies to unpreserved claims of breached plea agreements. So the Supreme Court granted cert.

In finding that Rule 52(b) does apply to unpreserved claims of breached plea agreements, Scalia started with the principle that plain-error review is rightly the norm for unpreserved errors, because “anyone familiar with the work of courts understands that errors are a constant in the trial process, and that a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal.” Exceptions to the normal rule do exist, of course. But should this situation be one of them?

Everyone took it as given that the government had broken its agreement. The issue is whether, in the absence of an objection below, anything could be done about it on appeal here.

The defendant first argued conceptually that the government’s breach of the plea agreement made that agreement void, and so voided the guilty plea. Scalia pointed out that breaching a contract does not make the whole contract void and invalid from the first; the contract remains enforceable.

The defendant next argued that there was precedent in *Santobello*, where a broken plea promise was grounds for reversal in the interests of justice, even though the breach did not affect the judge’s decision and thus the error was harmless. Scalia countered that whether or not an error is harmless is not the issue here, which is whether the error can be subjected to plain-error review. In *Santobello*, moreover, the issue clearly had been preserved below.

The defendant then argued that applying Rule 52(b) makes no sense, because objecting to a plea breach is futile; the prosecution’s wrongful action cannot be undone. The judge will have heard the improper recommendation, and can’t unhear it. Scalia stated that requiring an objection prevents defendants from “seeking a second bite at the apple” after waiting to see if they like the outcome or not. Also, some breaches are curable. And those that aren’t can be remedied by the trial court, such as by withdrawal of the plea, or by resentencing before a different judge.

The biggest point the defendant raised was that plea breaches fall within “a special category of forfeited errors that can be corrected regardless of their effect on the outcome,” so that even if there was no prejudicial effect, there still ought to be a reversal.

Scalia responded by categorizing the exceptions that do exist: errors that “necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence,” or that “defy analysis by harmless-error standards by affecting the entire adjudicatory framework,” or which involve “difficulty of assessing the effect of the error.”

None of those considerations applied here, so Scalia decided that this situation just didn’t fit as an exception to the general rule.

Justice Souter, joined by Justice Stevens, dissented. Although the defendant wasn’t terribly sympathetic, and although they agreed that the plain-error test is the right one to apply here, the dissenters felt that the Court was looking at the wrong effects.

The majority (and apparently the parties, too) looked at the effect of the error as merely being the length of the sentence, which probably wasn’t affected here. Souter, in contrast, saw the effect as being “conviction in the absence of trial,” or in the absence of “compliance with the terms of the plea agreement dispensing with the Government’s obligation to prove its case.”

The criminal conviction itself, not the length of sentence, is the effect on substantial rights according to Souter. Due Process and fundamental fairness require, “before the stigma of conviction can be imposed,” either a trial or a plea agreement honored by the Government. “It is hard to imagine anything less fair,” he stated, “than branding someone a criminal… because he entered a plea of guilty induced by an agreement the Government refuses to honor.” Sentencing after the prosecution breached a plea agreement would always, by definition, be plain error.

Justice Souter’s approach is, of course, attractive to those who value the fairness and integrity of jurisprudence. However, it is hard even for this defense attorney to agree that all such sentences are necessarily plain error, especially when an adequate remedy (getting to take one’s plea back) is available if the defense attorney is paying attention.