If you're new here, you may want to subscribe to my RSS feed. Thanks for visiting!

Plenty of other commentators have far more intelligent comments and insights on Boumediene [pdf] than I have to offer, so I will direct you to them (see this SCOTUSblog post for a collection of links as well).

I do want to leave you with this quote from Justice Kennedy’s opinion, via Orin at Volokh:

Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.

There is a reason it is called The Great Writ.

What is it in Connecticut’s water that makes some people batty? Whatever it is, it seems to have some staying power. After Cheshire and more recently the killing in New Britain, Connecticut Congressman Chris Murphy has announced plans to introduce legislation making “home invasion” a Federal crime. From his press release, a copy of which is posted at CTLP:

Today, Congressman Chris Murphy (CT-5) announced a pair of legislative initiatives designed to make home invasion a federal crime and provide additional federal resources and technology to parole and probation officials. Connecticut residents have witnessed two heinous home invasions and murders in less than a year – one just this weekend in New Britain, and one in July in Cheshire.
Murphy’s proposal intends to:

• make home invasion a federal crime;
• improve the FBI’s tracking of home invasions across the country;
• improve federal resources for parole and probation activities, including federal funds for the use of GPS monitoring devices and the hiring of additional parole and probation officers;
• And create a national training center for parole and probation officials.

“Connecticut has been through enough this year. These senseless crimes have hurt so much more than our homes and families – they have shattered our sense of safety and security in our communities. It’s time for the federal government to provide more assistance to the states to keep us safe,” said Murphy.

Now, I’m no Constitutional scholar and I know less about Federalism, but this quote sums up the nutiness of his proposal (thanks to a post on a local listserve):

“The Constitution requires a distinction between what is truly national and what is truly local, and there is no better example of the police power, which the Founders undeniably left reposed in the States and denied the central government, than the suppression of violent crime and vindication of its victims. Congress therefore may not regulate noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce.”

United States v. Morrison, 529 U.S. 598 (2000). So what’s the basis here for Federal legislation? I guess if there was a firearm that was used. But wouldn’t there have to be a showing that the firearm crossed state borders? So we would be talking about a very, very small subset of home invasions.

The real reason, I suspect, is to look good. Two of the districts he represents happen to be the scenes of horrific crimes.

However, is there no one advising him? It didn’t occur to him that this would not fall under Federal jurisdiction? Waste taxpayer money and others’ time to look good?

What’s that deficit at now?

A new paper asks the very question: Has Miranda become ineffective? Not because it’s not needed anymore, but because police departments are finding ways to get around it while achieving the same results. The conclusion is pretty bleak:

So how well do Miranda’s safeguards fare overall? I believe that we have a Miranda rule that is somewhat limited in reach, that sometimes locates warnings and waivers within the heart of a highly-structured interrogation process, that provides admonitions that many suspects do not understand, and that appears not to afford many suspects a meaningful way to assert their Fifth Amendment rights. As a prophylactic device to protect suspects’ privilege against self incrimination, I believe that Miranda is largely dead. I would welcome compelling evidence to the contrary (or proof that California is a complete outlier), but I do not believe such evidence exists.

This paper does an excellent analysis of the Court’s decision in Miranda and subsequent decisions that defined gutted its meaning and scope:

But a primary virtue of Miranda is, in theory, giving clear guidance and bright line rules to police, judges and prosecutors, thus avoiding difficult individualized assessments. Thus, it is not so much that the Court has retreated after Miranda but rather that the one-size-fits-all safeguards put in place by the Miranda Court could never have functioned as intended. Or perhaps it would be more accurate to say that a far higher proportion of defendants than the Court initially anticipated have been left uninformed and unempowered by form warnings.

So whither Miranda? Will it provide more benefit to abandon Miranda? The paper suggests legislative action:

One possible outcome might be legislation that directly regulates the police and affords greater protection to suspects than Miranda currently offers, perhaps in conjunction with a modified system of warnings. A legislature might, for example, require warnings in very simple language and instruct police to give them prior to any suspect interviews or interrogations. It could require that all interrogations be videotaped, a movement that is slowly gaining ground.

H/T: Appellate.

Update: I should have checked before posting. SimpleJustice also has some thoughts.

SCOTUS issued its much-awaited (by me, atleast) decision in Danforth v. Minnesota [pdf] today, ruling 7-2 that Teague’s retroactivity prohibition applied to Federal courts on federal habeas corpus review. State courts are hence free to apply decisions articulating violations to cases on direct and/or collateral review.

As Justice Stevens makes clear, what the Court does, in say Crawford, for example, is state that a particular act or omission violates the Constitution. It is then left to the states to decide how to remedy that violation.

Neither Linkletter nor Teague explicitly or implicitly constrained the authority of the States to provide remedies for a broader range of constitutional violations than are redressable on federal habeas.

…

Our subsequent cases, which characterize the Teague rule as a standard limiting only the scope of federal habeas relief, confirm that Teague speaks only to the context of federal habeas.

He wraps it up very succinctly:

A decision by this Court that a new rule does not apply retroactively under Teague does not imply that there was no right and thus no violation of that right at the time of trial—only that no remedy will be provided in federal habeas courts.

Whatever this means for federal habeas corpus practice, it is pretty clear that us state practitioners can now argue - with a stamp of approval - that our state courts should provide remedies for constitutional violations recently articulated.

It makes much sense, too, if you think about it in the context of the Fourth, Fifth and Sixth Amendments applied to the states through the Fourteenth. The Court has maintained that States are free to provide greater protections than afforded by the Federal Constitution. This falls in line with that quite well.

Read the whole decision - it’s very interesting. Justice Stevens conducts an in-depth analysis of Justice O’Connor’s plurality in Teague and cites Justice Scalia heavily. Then there’s this odd footnote; perhaps someone can explain:

13. That same year, we similarly denied retroactive effect to the rule announced in Griffin v. California, 380 U. S. 609 (1965), prohibiting prosecutorial comment on the defendant’s failure to testify. See Tehan v. United States ex rel. Shott, 382 U. S. 406 (1966). Shortly thereafter, in a case involving a Griffin error, we held for the first time that there are some constitutional errors that do not require the automatic reversal of a conviction. Chapman v. California, 386 U. S. 18, 22 (1967). Both Shott and Chapman protected the State of California from a potentially massive exodus of state prisoners because their prosecutors and judges had routinely commented on a defendant’s failure to testify.

A much better in-depth analysis from Scotusblog here. More from SL & P.

H/T: SL & P.

The 5th Amendment’s protection against self-incrimination certainly has been a hot topic in the blawgosphere. I’m going to bring it into the tech age, with this story about a man invoking the privilege and not giving up the password to his super-encrypted hard drive.

Boucher was crossing the border when he was pulled over for a secondary inspection. Of the 34,000 or so image files on Boucher’s computer, several appeared to have names suggesting explicit child pornography, so the agents wanted to see them. However, they were encrypted so they needed him to provide the password. They were stored on a partition of his hard drive, mysteriously called “Drive Z”. He entered the password himself and they saw some child porn, so he was duly arrested.

As per norm, they took the computer and created a mirror image of the drive. Unfortunately, they didn’t have the password to the encrypted files on “Drive Z” and now, a year later, they still don’t. Using all their high-tech skills, they haven’t been able to crack through the PGP encryption and now want him to fork over the password.

He invoked the 5th. On Nov. 29, Magistrate Judge Jerome J. Niedermeier ruled that compelling him to enter his password into his laptop would violate his Fifth Amendment right against self-incrimination. “If Boucher does know the password, he would be faced with the forbidden trilemma: incriminate himself, lie under oath, or find himself in contempt of court,” the judge said.

The judge, one of the very few that have upheld an invocation of the 5th, used an analogy from Supreme Court precedent.

It is one thing to require a defendant to surrender a key to a safe and another to make him disclose its combination.

The government can make you provide samples of your blood and handwriting and the sound of your voice. It can make you put on a shirt or stand in a lineup. But it cannot make you testify about facts or beliefs that may incriminate you.

It seems that legal scholars agree that there is a privilege in the password, but his using it at the border waived it.

“In a normal case,” [Orin] Kerr [who posts at Volokh] said in an interview, “there would be a privilege.” But given what Boucher had already done at the border, he said, making him provide the password again would probably not violate the Fifth Amendment.

My question is: Why is it a waiver for him to use the password once? I don’t know enough about 5th Amendment waiver jurisprudence, but when a witness invokes the privilege, it is usually done on a question by question basis. What if Boucher here is telling the truth that these may have been inadvertently downloaded and “went along” to prove to the agents that he was “innocent”? Then when he discovered that he was looking guilty, he didn’t want to “help” them anymore.

Certainly, Miranda rights can be asserted even after a waiver. So why not this?

HT: SOI

Image by thelastminute. License info here.

Intriguing news out of SCOTUS today. The IAC during plea bargaining case, Arave v. Hoffman, reported with much fanfare here, may not go forward after all. Per Scotusblog (via SL&P), attorneys for both sides have asked the Justices to vacate the Ninth Circuit opinion and dismiss the case as moot. Defendant’s motion is here [pdf] and the State’s response is here [pdf]. It really is curious. It seems that the defendant wants the relief imposed by the federal habeas court: vacate the death sentence and impose life.

Hoffman was convicted of first degree murder in 1993 and sentenced to death in an Idaho court. Almost a decade later, a federal habeas court vacated the death sentence for ineffective assistance of counsel during the penalty phase of the trial. The habeas court rejected a separate ineffective assistance claim relating to pre-trial negotiations, when Hoffman’s attorney advised him not to accept the state’s offer of a life sentence on the mistaken theory that Idaho’s death penalty scheme would later be found unconstitutional. A Ninth Circuit panel reversed on the pre-trial claim in mid-2006, requiring the state to release Hoffman unless officials offered him the original plea bargain. Idaho appealed, and the Court granted certiorari on November 5.

In the motion to vacate and dismiss, Hoffman’s lawyers say the inmate wished to withdraw the pre-trial ineffective assistance claim in order to proceed with the resentencing originally ordered by the federal habeas court for the penalty phase ineffective assistance claim. According to the motion, a status conference is set for December 13 before an Idaho state judge. Joan Fisher of the Federal Public Defender’s office in Idaho wrote that Hoffman made his decision “[a]fter extensive consultations with counsel,” and that his “trial and habeas counsel fully concur with his decision.”

I wonder what made him decide to do this. It’s not like the State was arguing that the death penalty should be re-imposed. Anyone have any ideas?

It’s disappointing that this may not be heard. The issue was truly interesting and I would have liked to see what today’s justices had to say about it.

Today I heard about a proposed amendment to Fed. Rule of Criminal Procedure 29 that will prevent judges from granting MJOAs at the close of the government’s case-in-chief unless defendants agree to allow the government to appeal.

Seems really strange and I haven’t been able to find anything about it. Anyone know anything?

In the end, the Georgia Supreme Court achieved the correct result. In a 4-3 opinion [pdf - make sure you read both the majority and the dissent] issued today, it found Genarlow Wilson’s 10 year sentence to be “cruel and unusual punishment” for the crime of which he was convicted. However, I’m not sure this majority opinion is that sound or has any precedential value whatsoever.

Specifically, I’m not sure that its distinguishment of Widner [pdf] is appropriate. The Court says that the main reason Widner is distinguishable (in Widner, the defendant was 18 and the “victim” was a few days shy of 14) is because the legislative change that altered the punishment for Genarlow did not do so for Widner.

What troubles me about this is that the Court seems to take its cues on the “evolving standard of decency” from legislative acts. While it expressly disavows that contention, nothing else in the opinion seems to support that notion. The court is essentially saying that a 10 year sentence for consensual oral sex between a 17 year old and a 15 year old is “cruel and unusual”, but it is okay if the actors are 18 and 14, because the legislature didn’t want to change that.

The Court doesn’t provide much by way of support for the evolving standard argument. It cites statutes from sister states that don’t punish the same conduct to this extent, but as far as I could see, there was no discussion of when those statutes were enacted or how long they were in effect. It then discusses Georgia statutes for seemingly far worse crimes but with far less punishment, but I don’t think it’s very instructive to compare manslaughter to consensual oral sex. Could that argument then be applied to larcenies as well?

The Court also dismisses that dissent’s contention that this opinion would have implications for several other defendants. It emphasizes that this is a very limited factual scenario they are dealing with.

It seems to me to be a very result oriented decision (and they got the result right), but whether it would stand up to SCOTUS scrutiny is beyond me. Thankfully, the AG seems willing to accept the Court’s decision and doesn’t seem like he will appeal.

Other blog coverage: from SL & P (here and here) and MUCH more here (and in the comments), Volokh, ConcurringOpinions and OfCounsel. My prior coverage :

• Genarlow Wilson turns down ambiguous plea offer
• Genarlow Wilson wins habeas and state appeals

The Second Circuit issued an interesting decision recently. I’ll let the Second Circuit Blog do the talking here:

In this curious but very troubling case, the court seems to have concluded, sub silentio, that Crawford trumps Bruton.

Obviously, [the defendant's] Confrontation Clause claim raises Bruton issues; indeed, this is the classic Bruton situation - the out-of-court statement of one defendant is used against a co-defendant. But here, the court never even got to Bruton. It held that Bobby’s out of court remarks were not “testimonial” under Crawford, and thus “our Confrontation Clause inquiry is at an end.” In other words, the court denied the Bruton claim without even mentioning Bruton.

This case, if it stands, would limit Bruton to cases where the co-defendant’s out-of-court statement was taken by the police, or is otherwise “testimonial” for some reason. The court might well be right - although only the Supremes will tell us for sure. But one would have hoped that if the court really wanted to take on such a radical and new issue (as of this writing, no other Circuit has so held), it would come out and say so directly, rather than leaving the entire bar to guess. Let’s that hope the [co-defendants] file cert petitions.

I don’t think the opinion is publicly available yet. Maybe they’re redacting something. Here it is.

Of course, the other big news yesterday was the 4th Circuit’s (!) grant of a habeas corpus petition in Al-Marri v. Wright [pdf]. The basics:

In a sharp rebuke to the Bush administration’s detention policies, a federal appeals court ruled Monday that the government cannot continue to hold a U.S. resident — a suspected Al Qaeda sleeper agent arrested in Peoria in late 2001 — without filing charges against him.

The 2-1 decision by a 4th U.S. Circuit Court of Appeals panel in Richmond, Va., means the government must release Ali Saleh Kahlah al-Marri, a legal U.S. resident, from military custody and either charge him in the criminal justice system, deport him or free him.

The blogosphere has plenty of coverage on this and I will be back later with more, once I’ve had a chance to digest the opinion. From the little I’ve read since yesterday, there are some choice quotes.

Here is Scotusblog’s fantastic analysis.

“The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention,” the Court said.

The Fourth Circuit panel majority ruled that Congress has not taken away the legal right of Ali Saleh Kahlah al-Marri to challenge his detention, thus limiting the reach of the Military Commissions Act’s court-stripping provisions. “As an alien captured and detained within the United States,” the Court said, “he has a right to habeas corpus protected by the Constitution’s Suspension Clause.” The Court said, though, that it was avoiding “difficult constitutional questions” about the MCA’s court-stripping provision, finding that it could interpret the MCA to stay clear of those issues. It found that the MCA withdraws habeas only for those properly detained as enemy combatants, and it ruled that al-Marri’s detention did not meet that test because of the lack of presidential authority.

Here is Volokh’s coverage.

The Government will seek en banc review by a full panel of the 4th Circuit.

I don’t normally post about national politics or federal legislation, but I happened to see this post at TalkLeft about Rep. Sensenbrenner’s proposed drug bill. This is very very scary. You know me, I don’t often employ hyperbole, so check it out. An excerpt:

How about three strikes for drug offenders - life no parole for a
third drug or violent felony. Remember that in most states, simple
possession of even a gram of cocaine, meth, lsd or heroin is a felony.
Federally, growing even one marijuana plant is a felony. Relatively
small amounts of mariuana offenses are still a felony in many states.

More: Your 21 year old gives a joint his 17 year old sister. He gets
a 10 year mandatory minimum sentence - for a first violation. With a
prior felony drug conviction, it’s life in prison, no parole.

The way I read the bill, under the section called "Drug trafficking in
the presence of children," this is a possible scenario: You run out of
your Ambien or your pain pills. You ask a friend to bring one over. If
you live with kids, even if they aren’t home, it’s a ten year mandatory
minimum. Now reverse it. Your friend is out of pills, you bring her
one. She has kids at home. She gets a mandatory ten year sentence, you
get away with five.

Damn.

Prof. Berman also has some views and links on it.