Because getting a warrant is just so tedious. Grumble

“I mean, it’s like, oh my gosh, as if!” said Wethersfield, CT police chief James Cetran when asked whether obtaining cell phone records of citizens of Connecticut should require a showing of probable cause.1Warrants based on probable cause are, like, so “tedious”, he followed up2. Further:

“It makes things faster, easier and better for us,” said Cetran. “It’s something you can do within minutes, not hours.

“Best of all, of course, would be no requirement to get a pesky judge involved, but I’m feeling like a fat cat from where I’m sitting already, so…” he most certainly did not say, but I’m going to pretend that he thought it to himself nonetheless.

  1. He did not, in fact, say that. I made that up.
  2. It’s unclear if this is a direct quote. The reporter seems to attribute it to Cetran, but it may be paraphrasing. It’s unclear. Don’t sue me.
  3. The good thing, of course, is that the contents of a phone seem to be protected by a reasonable expectation of privacy in CT, but the Governor’s top criminal justice policy guy doesn’t seem too inclined to want to strengthen the protections for warrantless searches of our phones and electronic media.

Fernandez v. California: remove the objector, won’t be no objection

What problem is?

What problem is?

I know that a majority of my readers are lawyers, but there are a fair number of you who aren’t and so from time to time I like to reproduce stirring pieces of legal opinions that explain so eloquently the protections that we have and the reasons we have them. The opening of Justice Ginsburg’s dissent yesterday in Fernandez v. California [PDF – pg 23 onwards] provides such an opportunity, so I reproduce a large quote from it:

The Fourth Amendment guarantees to the people “[t]he right … to be secure in their . . . houses . . . against unreasonable searches and seizures.” Warrants to search premises, the Amendment further instructs, shall issue only when authorized by a neutral magistrate upon a showing of “probable cause” to believe criminal activity has occurred or is afoot. This Court has read these complementary provisions to convey that, “whenever practicable, [the police must] obtain advance judicial approval of searches and seizures through the warrant procedure.” Terry v. Ohio, 392 U. S. 1, 20 (1968). The warrant requirement, Justice Jackson observed, ranks among the “fundamental distinctions between our form of government, where officers are under the law, and the police state where they are the law.” Johnson v. United States, 333 U. S. 10, 17 (1948)1. The Court has accordingly declared warrantless searches, in the main, “per se unreasonable.” Mincey v. Arizona, 437 U. S. 385, 390 (1978).

In its zeal to diminish Randolph, today’s decision overlooks the warrant requirement’s venerable role as the “bulwark of Fourth Amendment protection.” Franks v. Delaware, 438 U. S. 154, 164 (1978). Reducing Randolph to a “narrow exception,” the Court declares the main rule to be that “consent by one resident of jointly occupied  premises is generally sufficient to justify a warrantless  search.” Ante, at 7. That declaration has it backwards, for consent searches themselves are a “‘jealously and carefully drawn’ exception” to “the Fourth Amendment rule  ordinarily prohibiting the warrantless entry of a person’s  house as unreasonable per se.” Randolph, 547 U. S., at 109 (quoting Jones v. United States, 357 U. S. 493, 499 (1958)). See also Jardines, 569 U. S., at ___ (slip op., at 4)  (“[W]hen it comes to the Fourth Amendment, the home is  first among equals. At the Amendment’s ‘very core’ stands   ‘the right of a man to retreat into his own home and there  be free from unreasonable governmental intrusion.’”); Payton v. New York, 445 U. S. 573, 585 (1980)(“[T]he physical entry of the home is the chief evil against which  . . . the Fourth Amendment is directed.”

That should explain to you that in our country, under our system of laws, there is nothing more sacred than the right to be left alone in one’s home and that there is an almost absolute prohibition on the police entering your home without a warrant. One of the exceptions to that rule is if you consent. If you give the police permission to enter, then they don’t need a warrant.

  1. He has another delightful quote in Johnson: “The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers. Crime, even in the privacy of one’s own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.”

How do you solve a problem like jailhouse informants?

Every defense attorney knows that jailhouse informants are the scourge of confession cases: the defendant who is too clever by half, who refuses to talk to cops and invokes his right to a lawyer,  but brags to his cellie about how he “totally did that punk in”. Despite jailhouse informants being the cause of 15% of wrongful convictions, juries still lap that stuff up. For some reason, we as humans cannot escape the psychological pull of a confession – purported or otherwise.

Since trial lawyering is some parts art, some parts science and mostly blind dumb luck, trial lawyers have forever come up with artful ways of countering the appeal of a jailhouse informant and the defendant’s alleged confession: expert testimony, artfully crafted jury instructions and fearsome cross-examination.

But how does the science match up? Does it support any of these methods by convincing jurors to disregard the alleged confession?

Wednesday is link dump day (updated)

linkdump

It’s been a while since I dumped some links on you. So. Here are some links:

  • Lenore Skenazy of Free-Range Kids has this must read piece in the WSJ on the Wellesley “man in his underwear” art installation.
  • Mississippi Supreme Court rules [PDF] that not permitting standby-counsel to withdraw violated a defendant’s Sixth Amendment right.
  • Newspaper editor serves on a jury, has fantasies of 12 Angry Men and then writes about his experience.
  • There is a massive wrongful conviction problem brewing in Brooklyn.
  • Texas Court of Criminal Appeals rules [PDF] that a defendant cannot get DNA testing of evidence seized because he cannot prove that there is DNA evidence on that evidence…which he couldn’t prove unless he got the evidence tested, which he can’t do because he can’t prove…
  • The Seventh Circuit concludes yet again [PDF] that a condition of supervised release that prohibits sex offenders from possessing or viewing or being in a place that exposes them to pornography is too vague and thus unconstitutional.
  • A new federal judge in Iowa is accused of forgetting that she’s no longer a prosecutor and screwing defendants far worse than actual current prosecutors want to.
  • A look at the 18 deaths in the custody of Milwaukee County law enforcement agencies from 2008-2012.
  • Eugene Volokh questions the utility of state statutes that prohibit secretly recording private conversations because in one case it let a “criminal” go free.
  • Paul Kennedy writes about the trial of a woman finally scheduled to start after she’s been held for 2 years for accidentally elbowing a cop.
  • A fantastic piece in MassLive on the complicated history of the death penalty in Massachusetts.
  • Scott Greenfield writes about the conclusion of the ‘no-fly’ list saga, which I wrote about earlier. Wired has more.

Defining the role of appellate courts

Dan Klau points, rather diplomatically, to a Connecticut Supreme Court opinion issued today [PDF] which he lost. It’s a civil case, but what sucked me in was his description of the issues in the case, which fits right in with the theme of complaints that I have with this present Supreme Court:

In particular, it will tell us whether a majority of the Court believes that the proper role of an appellate court is to decide the issues that the parties have raised and argued–and only those issues–or, alternatively, whether the Court believes that it is appropriate to decide cases based on issues that appellate judges raise on their own initiative. In short, can and should appellate courts raise and decide unpreserved issues sua sponte?

Today, the Connecticut Supreme Court ruled that yes, it could very well decide appeals based on issues that it raised on its own and that no one thought of at the trial level and that weren’t preserved or properly briefed or that the trial judge had no opportunity to consider.

Okay, that’ll be the last of the snark for today, because it actually is a really interesting and important opinion written by Justice Palmer.

The issues were divided up by the Court as follows:

  1. And here, the Court shifts the burden to the other party to show that there would not be any unfair burden to the opponent.
  2. Although this can be overcome or ignored under the right circumstances, according to the court.

Friendly reminder to law enforcement: stop listening to attorney-client conversations

It is, of course, an undeniable fundamental right that communications between a criminal defendant and his or her attorney should be utterly confidential1 and that, under no circumstances, should the prosecution get access to the content of those conversations.

Having said that, what is to be done if a prosecutor gets hold of confidential communications or learns of the substance of these conversations? Must there be an automatic reversal? Or this “fundamental right” to be rendered meaningless yet again, subjected to the legal fiction of harmlessness.

That is the question confronted by the Supreme Court of Washington in State v. Fuentes. In Fuentes, after the defendant was convicted by a jury, but during the pendency of post-trial motions, the prosecutor asked the investigating detective to listen to the defendant’s phone calls from jail to determine if there was any witness tampering going on2:

  1. Except in very narrow, finite circumstances to avoid death or serious physical injury.
  2. The defendant’s family had approached and interviewed the complainant’s half-sister in order to present additional testimony that the allegations were fabricated.

Hang on a minute, I need to indict someone

I Ham Sandwich

Would you like due process violations as your side or just some plain old cocaine?1

You know, when people usually say “hang on a minute”, you know that it’s going to take longer than a minute. It never takes a minute. Unless you’re a grand jury in North Carolina, that is. From the Charlotte Observer, via Andrew Cohen2:

During a single four-hour workday last week, a Mecklenburg County grand jury heard 276 cases and handed down 276 indictments.

That means the 18 jurors heard evidence, asked questions, weighed whether the charges merit a trial, then voted on the indictments – all at the average rate of one case every 52 seconds.

You read something like that and you just have to laugh. You have to laugh because it’s so improbable and so absurd that it must be true and that it can only happen here, in these United States of America, the best country in the world with the best justice system in the world, because by God, we hate criminals.

In the time that it’s taken you to read this post so far, 3 people have gotten indicted by that careful, deliberative North Carolina grand jury. And another one. And another one. Mayhem!

There is no greater example of grand juries outliving their utility. It is inescapable that this grand jury did not perform its time honored-function of, as Andrew Cohen puts it:

  1. Image via.
  2. I love you Andrew Cohen.
  3. No wonder Connecticut prosecutors are pushing for a return to a modified grand jury system