Category Archives: supreme court

No trespassing

I'm talking to you, officer.

I’m talking to you, officer.

[Update: See update at end of the post.]

Have you given strangers permission to come to the front steps of your house? Have you given a stranger permission to cross onto your property line and walk to the front door of your house? Certainly, none of us have given this explicit permission – we don’t post a sign at the edges of our property that “all are welcome”, but we have implicitly given some people permission to enter without our prior approval: the mailman, the neighbor borrowing sugar, the girls selling cookies, the cops with drug-sniffing dogs.

Wait, what? That’s precisely what happened in Florida v. Jardines [PDF], decided today by the United States Supreme Court and the State of Florida, along with 4 Supreme Court justices, argued that it was quite all right for cops to bring their drug sniffing dogs onto private property without a warrant in an attempt to sniff out illicit activity. Luckily for us and our individual rights, 5 members of the Court disagreed.

The case itself is an easy one to resolve, as both Justice Scalia’s majority opinion and Justice Kagan’s concurring opinion state: there is a physical intrusion onto your property by government agents:

The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.

The rest of the opinion is a good recap of some basic principles: what is a curtilage, was the intrusion unlicensed and that this “physical intrusion” test of Fourth Amendment jurisprudence is in addition to the standard “reasonable expectation of privacy” test of the Fourth Amendment.

And this is where, if this were a TV show, you’d hear the oft-used scratched record sound effect meant to imply halting.

Your rights are only worth the probable cause used to extinguish them

This, folks, is what happens when you don’t pay attention to the erosion of our collective rights. This is what happens when you steadfastly maintain an “us vs. them” attitude. This:

Maryland Deputy Attorney General WINFREE: But what I — the cornerstone of our argument is that when an individual is taken into custody, an individual is arrested on a probable cause, on a probable cause arrest, that person by virtue of being in that class of individuals whose conduct has led the police to arrest him on — based on probable cause surrenders a substantial amount of liberty and privacy.

If your eyes haven’t popped out of your head yet, you should check with an ophthalmologist. They may be stuck in place. The Government – Your Government – has brazenly started taking the tact in open court that simply by virtue of being arrested, an individual surrenders a “substantial amount” of liberty and privacy. I’m pretty certain she didn’t mean this in the literal sense of arrest and being locked up (which also has some requirements of balancing interests). This is in the sense that once you’re arrested, your rights are limited and you, by virtue of causing the police to arrest you, have forfeited privacy expectations and Constitutional rights.

Her argument, in that brief moment before Justice Kagan challenged her on it, was that by virtue of an arrest, an individual has voluntarily sacrificed his Fourth Amendment rights as is the issue in the case she was arguing.

Do you know what it takes to arrest someone? Next to nothing. You know the “ham sandwich” joke? Well probable cause is what they replaced grand juries with. And probable cause is whatever the hell they want it to be. It doesn’t have to be probable cause of the particular officer making an arrest, either and it can be based on completely innocuous every day actions of regular people.

I don’t normally say this, but thanks Justice Kagan:

JUSTICE KAGAN: But, Ms. Winfree, that can’t be quite right, can it? I mean, such a person, assume   you’ve been arrested for something, the State doesn’t have the right to go search your house for evidence of unrelated crimes; isn’t — isn’t that correct?

MS. WINFREE: That’s correct, Justice Kagan.

JUSTICE KAGAN: It doesn’t have the right to search your car for evidence of unrelated crimes.

MS. WINFREE: That’s correct.

JUSTICE KAGAN: Just because you’ve been arrested doesn’t mean that you lose the privacy   expectations and things you have that aren’t related to the offense that you’ve been arrested for.

Of course, what’s lost is that this State (Maryland) and the 49 other states that joined Maryland via an amicus brief already routinely take the position that once you’re arrested, you lose rights. (CT passed just such a bill last year. All my posts on DNA are here.)

In the case being argued, Maryland v. King, the Court is tasked with applying the Fourth Amendment to the 21st Century (is your computer’s recycle bin like your home’s trash can?). When someone is arrested for Crime A, can they take the person’s DNA and then enter it into a cold-case database to see if it matches any old crime. In King’s case, it did. He was then charged with and convicted of Crime B. At the time they took the DNA, they had absolutely zero suspicion that he was involved. It’s a routine procedure done with all arrestees.

These laws permit the collection of DNA from anyone who’s been arrested because they got into a drunken bar fight or because their boyfriend called the cops and said they were threatened or because a vindictive neighbor doesn’t like your dog pooping on his lawn or because you’re driving while black. And you have to give up your DNA, because the Man said so. And with that DNA, you give up your genome, your individual traits and characteristics.

You can read the oral argument transcript here and reports from SCOTUSBlog, the ABA Journal, the WaPo and the NYTimes to get a sense of how the court will rule. There are some Scalia zingers in there too. But I wanted to highlight this separate quote, for fear that it will get lost in the greater discussion.

And I want to keep asking that question: why aren’t you scared yet? Why don’t you care enough?

Justice Alito called this the “most important criminal procedure case this court has heard in decades”. He’s absolutely right. It’s time for the court to decide what’s more important: helping cops catch crooks or the individual liberties and freedoms of every citizen of this country. The answer’s clear to me. Is it to you?

It’s not like you knew you had that right, anyway.

We can all name certain rights that we have: the right to counsel, the privilege against self-incrimination, the right to be free from unreasonable searches and seizures, the right to say whatever the hell you want, the right to have the arms of a bear, etc. But do we think that these are all the rights we have? Especially in the criminal context, there are various other rights that each person has that we may not necessarily be aware of. The right to a trial by jury, for example, is well known, but it is actually the right to a public trial by jury. [TL;DR at end of the post.]

Well sure, that seems obvious enough: you can’t have a trial in a closed courtroom, or in a judge’s chamber somewhere. According to Presley v. Georgia [PDF], the Constitution guarantees it. But did you know that a courtroom, while seemingly open, might be “closed” to the public? And did you know that, even if you didn’t know that, your lawyer may make the decision to say that’s okay without telling you?

That’s what the Massachusetts Supreme Judicial Court concluded in Commonwealth v. Lavoie last month. In Lavoie, they were conducting public voir dire, which last two days. Apparently because there were so many prospective jurors, the court sheriffs asked family members of the defendant to leave the courtroom and told them they couldn’t be present because there was no room for them. The lawyer didn’t notice; the judge didn’t notice. The defendant did know it and he was annoyed, but didn’t say anything, because, you know, he’s a defendant in a criminal trial and he’s not exactly in charge of much.

So he got convicted and some years later filed a motion for new trial arguing that his Constitutional right to a public trial was violated. The State naturally objected, claiming almost preposterously that he had implicitly waived the right because he didn’t say anything to anyone and neither did his lawyer. Lavoie responded, rather logically:

there was no explicit waiver by the defendant or his attorney, and … defense counsel could not waive his client’s rights without ever discussing the issue of his right to a public trial with him. The defendant further states that a waiver of this right could not have occurred where he did not know he had such a right or understand that his counsel made a decision concerning that right.

In other words: how the hell do I waive something I don’t know I had the right to? Quite simply, says the Court, because your lawyer made a tactical decision to do so. And there, kids, is how the courts get away with almost anything: by couching everything in terms of a decision of tactics, the courts shift the power of enforcement from the defendant to his lawyer. Even when his lawyer doesn’t remember consciously making that tactical decision. Like, oh, I don’t know, Lavoie’s lawyer:

Defense counsel stated that it was not his usual practice to object when court officers cleared the court for jury selection because he was aware that space was often insufficient, and he did not want to interfere with “court officers who he perceived engaged in a difficult job” or to have family members sitting near potential jurors. Defense counsel also expressed his belief that family members could present a distraction and, specific to this case, stated his concern that the defendant’s mother “was an emotional individual [who would] be a distraction.”

Although defense counsel had no specific recollection of court officers excluding the defendant’s family during jury selection and did not discuss this issue with the defendant, “he had consciously decided prior to this trial not to object to the removal of family members or supporters during the jury selection process in courtroom 12B.”

The emphasis is all mine just to highlight the bullshit. I’ll bet you a box of Krispy Kreme donuts this attorney, when seeing a copy of the motion raising this claim, thought: “oh crap, I never even thought of that!” And if you’ve practiced criminal law for longer than a second, you’ve already run into some CYA lawyer who’s told you to claim it was a tactical decision, no matter what. Courts are all too happy to oblige, because really, he was guilty, right? And that’s all that matters?

[Because really that’s what the value of your rights are. Are you guilty enough? That’s the justification for repeated violations of Constitutional rights: harmless beyond a reasonable doubt. “Well yes, this confession was obtained illegally, but he was really guilty, so it doesn’t matter” and on and on.

The legal gymnastics really are a sight to behold: 1. The defendant has a lawyer, so the lawyer’s word is as good as the defendant’s. 2. Except when the lawyer speaking doesn’t mean anything [State v. Johnson, PDF] if the defendant doesn’t speak. 3. Even if either and or both speak, it’s not sufficient because they didn’t explain their objection properly. 4. Even if they objected, they didn’t list all the possible grounds for objection so it’s waived5. If they said the rights words, they didn’t object a second time and that was essential. 6. If they objected a second time and properly preserved the issue, it doesn’t matter because he’s guilty anyway.

And yet we puzzle why this happens over and over again and why judges and prosecutors and cops don’t learn: because there’s no punishment for doing it wrong. It’s like having a cat that constantly eats your birds but you don’t do anything because, well, you don’t give it enough food, so it’s justified.

So our rights will always be infringed upon because there’s no corresponding punishment for violating them: and you and I and the rest of us “non-criminals” are just as implicit in this erosion as the judicial system. We cry and moan about “guilty” people getting off on “technicalities”. The Constitution isn’t a technicality. It shouldn’t matter how guilty you think someone is; a violation of fundamental rights should have appropriate remedies. Because guess who decides if someone is guilty enough for the error to be harmless? Judges and courts and the legal system. It’s a system that feeds itself. And we will become fodder.]

The right to an open court in criminal proceedings is “an effective restraint on possible abuse of judicial power,” In re Oliver, 333 U.S. 257, 270 (1948), which functions for “the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned.” Waller v. Georgia, 467 U.S. 39, 46 (1984). Yet, it is okay for a lawyer to implicitly do away with this right on behalf of his client without ever consulting or mentioning it to him?

It seems that the courtroom of justice has long been closed.

TL;DR because apparently everyone is stupid now and has no attention spans: your lawyer can waive rights on your behalf that you never knew you had because justice.

H/T: Juries



The joke’s on all of us

Our priorities have gone askew. Never has this been clearer to me than today, viewing from afar the circus surrounding an apparent once-in-a-decade event gathering steam: the utterance of words out loud by a Supreme Court Justice. Yes, he spoke. Yes, he said something incomprehensible. Yes, he and Scalia were making fun of Yale and Harvard. And that, apparently, is newsworthy. That, apparently, has been the impetus for hundreds of posts and BREAKING NEWS items and thousands of wasted pixels speculating exactly what he meant. Has the streak been broken, the L.A. Times – which I thought was a reputable newspaper, but apparently not – asks of its readers and also somewhat funnily has this sentence in the same article:

It’s a slow news day at the U.S. Supreme Court when the biggest story is whether an overheard, offhand comment by Justice Clarence Thomas means he has broken his nearly seven-year streak of silence.

It’s a slow news day if you don’t really care about the issue of the massive funding crisis that is threatening indigent defense across the country; it’s a slow news day if you’re too fucking stupid to realize that everyone’s due process rights are about to take it in a most impolite way if it’s okay for the State to hold someone for 5 years without giving them a trial. It’s a slow news day if writing about Justice Thomas uttering half a sentence at the Supreme Court is what you do when you’re waiting for Lindsay Lohan to fire another lawyer.

I’m amazed at the number of articles that keep popping up in my feed reader about Thomas and his words of wisdom. Hell, the New Yorker got into it to remind us that, in their opinion, Thomas really hates Yale. Liptak engages in a Zapruder film like frame-by-frame analysis of what this man might’ve uttered. I could go on and on with links, but you get the point.

You know what’s missing in every single one of these articles? A mention of Boyer. Who’s Boyer, you ask? Boyer, of Boyer v. Louisiana [SCOTUSBlog preview; oral argument transcript here]. Boyer, who sat in jail for 5 years facing the death penalty because the State could afford to only pay one of his lawyers – one that wasn’t qualified to represent him in a death penalty case. Boyer, in whose case witnesses died while he was waiting for the political football of indigent defense funding to stop getting punted around from endzone to endzone like it was a Browns vs. Cardinals game. Boyer, whose egregious delay the state of Louisiana seeks to shrug off as not really important and certainly not their fault.

The State of Louisiana which had the gall to argue before Justice Thomas and the rest of the Court that using funds to pay prosecutors to prosecute crimes but not defense lawyers to defend against those crimes is not a “deliberate choice”. It’s the same State that will argue that it’s the fault of the poor, jailed defendant with an 8th-grade education that he wasn’t tried for 5 years after arrest. It’s the same State that thinks it’s okay for him to proceed to defend a death penalty case with counsel who is ineffective.

You want a story? I’ll give you a story: this is the 50th anniversary of Gideon v. Wainwright. That the decision trumpeted the arrival of an era of equal justice for all, but that era has never materialized. That states still woefully underfund indigent defense; that access to justice isn’t equal and that people get screwed. Every. Single. Day. And it’s this Court – Thomas and others – who have the authority to change that, to alter that reality for hundreds of thousands of Americans. Today for all my clients; tomorrow, perhaps for you.

But no. Let’s continue to be cute and write funny stories about what an odd man that Justice Thomas is that he hasn’t asked a question in 6 years and well, was he making fun of Harvard or Yale? Because, really, who gives a fuck about Boyer, right? Stupid Constitution getting in the way, just like Thomas always said.


TL;DR: Thomas mumbles, internet creams itself, Boyer sits in jail, Gideon weeps.

[Update: Sorry, couldn’t resist this update. After my rant above, I stumbled across this stunningly bizarre, tone-deaf, self-important post by Tom Goldstein of SCOTUSBlog, who, apparently, chides the internet not for taking a serious issue and making light of it like I do, but almost the opposite: for taking the joke too seriously. That’s some fucking serious level of meta that even I haven’t been able to get to in all my years of internet trolling. Well played, TG, well played.]

Nullifying death

Today, all nine Justices of the Supreme Court met to decide whether to continue to permit juries in capital cases that are inherently biased toward imposing a sentence of death, or to finally revisit a much-maligned and problematic practice of “death qualification” of juries.

In 1968, the Supreme Court announced a seemingly bright-line test for determining when the State could unilaterally prevent jurors from serving on a capital case (exercising a peremptory challenge): when those jurors stated that they were unequivocally opposed to the death penalty and could not impose a sentence of death in any circumstance. In Witherspoon v. Illinois, the Supreme Court held that the State could legally excuse jurors:

who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.

Witherspoon, reaffirmed in Wainwright v. Witt, still rules the day. Death qualified juries are the norm and community members are regularly excluded based on their moral opposition to the death penalty.

Forfeit what?

Colin Miller, law professor at University of South Carolina School of Law and author of the highly informative EvidenceProf blog (which is the one lawprof blog that should be on everyone’s feed reader) has been blogging up a storm about the Drew Peterson verdict – specifically the role that the forfeiture by wrongdoing doctrine played in that conviction.

He started with this post on why any appeal in the Peterson case wouldn’t be based on “Drew’s Law”, then followed that up with these separate blog posts discussing the application of the forfeiture by wrongdoing doctrine and a discussion of the “transferred intent” theory of forfeiture which could be implied from Giles v. California. All of that has culminated in him writing this new essay [here‘s the PDF] which gathers his thoughts on the subject and concludes that Giles does indeed endorse (and must endorse) a transferred intent theory.

The problem with the transferred intent theory, as I mention in my post on the subject, is that it permits the introduction of a decedent’s statement in a murder trial for the murder of that very decedent. So even if the defendant made the witness unavailable to testify in another proceeding, the untested hearsay statements of that witness are used to prove that the defendant killed him/her. Indeed, many commentators and courts have reached this conclusion, arguing that it would make no sense in the context of the forfeiture doctrine to let those statements come in at a different trial, which was not even in existence at the time of making the the witness “unavailable”:

Should dead women tell some tales?

Having had my egg for lunch, I spent the better part of the day attempting to untangle the evidentiary web that seems to have ensnared many following and participating in the Drew Peterson saga. Drew Peterson, for those of you who don’t know, was a sort of Black Widower: a man who left a trail of dead wives. A jury just found him guilty of murdering his third (?) ex-wife, while wearing matching outfits. The jurors were wearing matching outfits, not Peterson and his wife. Lacking physical evidence, the prosecution relied on statements made by both his third ex-wife (the decedent in the trial) and his fourth (who is also missing) to friends, family and clerics.

And this is where, as they say, the plot thickens. With help from these two fantastic posts at EvidenceProf and this equally detailed post by anonymous public defender “S”, the issue has become somewhat clear less murky.

So, let’s start at the very beginning:

The statements in question do not implicate the Confrontation Clause of the United States Constitution. As stated in Crawford, the Confrontation Clause is concerned only with out of court testimonial statements. The out of court statements relied upon to convict Peterson were made to friends and family and thus not testimonial. So forget Crawford. What that leaves us with is whether the statements are admissible under any exceptions to the rule against hearsay.