The Volokh Conspiracy

I recently finished the new book by the late Bill Stuntz, The Collapse of American Criminal Justice. My co-blogger Paul Cassell reviewed it here in the Wall Street Journal, and I wanted to blog my own thoughts about the book. My basic take is that it’s a great book, with many important insights. It’s the most interesting book on the criminal justice system that I’ve read in a long time, and perhaps ever. At the same time, I’m not sure I’m entirely convinced: Stuntz makes a number of claims that strike me as questionable. Plus, his recommendations for reform stuck me as a bit utopian. In this post, I’ll introduce Bill’s basic theory, and then offer some thoughts in response. In a future post, I’ll turn to Stuntz’s recommendations, and again offer my own reaction.

I. The Basic Argument of Stuntz’s Book

Stuntz’s argument starts with a widely-heard set of complaints about today’s criminal justice system: Too many people are in prison, too many laws are too punitive, and criminal cases are generally resolved by guilty pleas guided by prosecutors rather than trials resolved by juries or judges. The question is, why? In Stuntz’s view, the major reason is that criminal justice has lost its local character.

In the 19th Century, Stuntz explains, criminal law and justice was largely local. There was a lot of variation by region, to be sure. But on the whole, local police captured local criminals, who were charged by local prosecutors and tried before local juries using criminal law standards from the common law that were vague and left considerable discretion to the jury. In Stuntz’s view, that system worked pretty well – much better than we realize today. Criminal punishment was relatively rare, and punishment reflected community norms and senses of justice. According to Stuntz, a range of forces have slowly eliminated the local character of criminal law. And losing the local character of the law has made it more punitive and less fair.

What changed? First, the shape of criminal law doctrine came to be seen as a legislative question, not a judicial question. Criminal law used to be fixed: It was settled by the basic doctrines of the common law. As criminal law became seen as a field subject to control of the state and federal elected branches, criminal law began to expand. Because most see themselves as potential crime victims rather than potential criminals, especially in the aggregate at the state and federal level, politicians have a strong incentive to be seen as “tough on crime” by making criminal law broader and harsher. And because most voters don’t directly experience crime levels or the effect of punishment on their own communities — most voters don’t live in high-crime neighborhood — they tend to be receptive to the “tough on crime” message even if the law is already tough. The system thus tends towards harsher and harsher punishment, especially at the state and federal level. Even local prosecutors have new incentives to be extra harsh, as state governments rather than localities have come to pay for the prisons: Local prosecutors can get all the public relations benefits of “locking them away” without having to pay the bill for costly imprisonment.

This trend was facilitated by the Supreme Court’s failure to keep legislatures in check. In Stuntz’s view, the Equal Protection clause should have been a major check on legislative and executive action in the criminal justice field. The Courts should have interpreted it to ensure substantive fairness in the laws, and especially to eliminate racial discrimination. But the Court instead gutted the Equal Protection clause in the 19th Century in United States v. Cruikshank. At the same time, the Supreme Court adopted an expansive interpretation of the Commerce Clause as far back as the 19th Century, allowing Congress to federalize morals legislation based on a simple showing that something crossed state lines. By taking a deferential position that allowed racial discrimination to flourish at the state level and enabled Congress to federalize criminal law, the Supreme Court wrongly let the political branches do as they pleased. Legislatures could raise punishments as high as they liked; police could engage in pretext prosecutions, and target minority groups; and prosecutors could add lots overlapping charges to induce guilty pleas.

Stuntz argues that the harshness of the criminal justice system was inadvertently aided by well-meaning progressive reformers. Reformers tried to make the system more fair, but their efforts backfired. In the 19th Century, criminal law was vague and procedural rights were few: Trials were cheap, they occurred all the time, and juries had a lot of discretion under common law standards. In response, 20th Century reformers tried to rationalize and clarify criminal law standards by replacing vague common law definitions of crimes with new clear ones (such as the Model Penal Code). The idea was to make criminal law more predictable and rational, but the perverse effect was to greatly diminish the role of the jury: Whereas traditional criminal law doctrines had left lots of discretion for the jury, the new clear standards gave defense attorneys very little to argue about. The result was more guilty pleas and fewer trials.

At the same time, the Warren Court’s criminal procedure revolution gave defendants more rights with the aim of making the criminal justice system more fair. To some extent, this was a belated response to the 19th century Supreme Court’s failure to take the Equal Protection clause seriously. But in Stuntz’s view, using the Bill of Rights to focus on the procedure of criminal justice (the law of investigations) rather than using the Equal Protection clause to focus on the substance of criminal law (definitions of crimes) only made the problem worse. More procedural rights raised the costs of trials. Because legislatures were free to alter the substance of criminal law however they pleased, legislatures responded to the new procedural rights by broadening criminal laws, jacking up criminal penalties, and giving prosecutors wide discretion to pressure defendants to plead guilty in exchange for a “deal.” Perversely, the result of giving defendants more rights was to create an environment in which most defendants were pressured into waiving all their rights in practice by pleading guilty. The Supreme Court’s regulating procedure instead of substance just made the substance worse instead of making the procedure better.

II. A Few Thoughts In Response

I find Stuntz’s argument fascinating. He makes a lot of intriguing claims, and there’s a ton to chew on here. It’s the kind of book I want to mull over and read again, which is about the highest compliment I can give. For what it’s worth, my initial “mull” finds me partially persuaded and partially unpersuaded. Some of what Stuntz says rings true, but some of his claims raise a lot of question marks.

Stuntz’s basic narrative of the need for localism strikes me as persuasive and really important. His focus on the need for criminal justice to stay attentive to the needs of the community — and the dangers when decisionmakers don’t reflect the views of the community most directly impacted by crime — rings true to me. To some extent, Stuntz’s view is the classic argument for local decisionmaking: People can take care of themselves better than others they don’t know, as they are more closely tied to the facts of what is happening and they can exercise judgment based on local opinions. So on the basic gist of the argument, I’m pretty impressed.

Stuntz’s effort to link the Supreme Court’s caselaw on substantive criminal law and criminal procedure is also a terrific and insightful move — one that is based on and extends what what is probably Stuntz’s most important article, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, published in the Yale Law Journal in 1997. Uneasy Relationship is a favorite of mine, and I was glad to see its insights take a prominent place in Stuntz’s book.

At the same time, I had some significant concerns with parts of the argument. Let me focus on two parts in particular. First, I thought Stuntz had a rather rosy view of the past of criminal justice. His conclusion that the system more or less worked in the past strikes me as optimistic. Much of his argument was based on data like crime rates and imprisonment rates that I found hard to assess. I found myself unsure of whether to accept the data as accurate, and I was dubious that we can say very much about how the criminal justice system worked assuming all the data is right Take the fact that crime rates have plummeted since the early 1990s: Does that really suggest that we’re doing something right today that we were doing wrong twenty years ago? Or is this just the fortunate byproduct of banning lead, or something else? Stuntz doesn’t have much of an answer for why crime rates have plummeted in the last 20 years — he discusses it at length, and concludes it is a real puzzle — which to my mind reflects a skepticism that could be equally well applied to the causes of crime rates in the past.

Similarly, I think the differences between the common law of crimes and the more modern approach to criminal law are much more modest than Stuntz suggests. There are some differences, yes. But on the whole, they’re minor: The basic elements of the basic crimes today are pretty similar to what they were in Blackstone’s time. And some defenses, like necessity, are generally considered broader today than they were in the past (to the extent they existed at all). As a result, it seems dubious to me that changes in approaches to criminal law played a significant role in changing the nature of the criminal justice system. It’s an intriguing idea, and fits the classic Stuntzian unintended consequences mold. But I’m just not sure it works. If there were such an important difference between the common law standard and the modern standard, wouldn’t we expect to see a difference between the outcomes in jurisdictions that today still retain the gist of the common law approach and those that have widely adopted the modern approach? Stuntz doesn’t suggest that there is such a difference, and I don’t know of one. So I’m skeptical that that there is an effect such as what Stuntz mentions, or at least that it is significant.

Of course, it may be that the law has operated differently, rather than the doctrine is different. Slight differences in trial procedure can have a huge difference in how the law is applied. Take the case of the trial judge’s gate-keeping function. These days, trial judges play a major gate-keeping role: If a defendant wants to put on a defense, for example, the trial judge has to find enough evidence to support it before it can be argued to the jury. If there were different gate-keeping functions in an earlier time, then the law could be applied very differently even if the formal doctrine were the same. If judges used to give all the issues to the jury, for example, the jury would have a lot more discretion than they do today because they would be invited to consider more defenses, not because the details of the jury instructions on the law would be any different. I don’t know enough about the history of criminal trials to know if that gate-keeping function has changed much, but I suspect that is more likely source of jury discretion than changes in doctrine.

David Savage of the LA Times reports that many criminal defendants should be thankful for Justice Scalia.  In recent years he has led the charge for more strict enforcement of the Sixth Amendment‘s confrontation clause.  This is but one example of how originalist approaches to constitutional interpretation do not always produce “conservative” results.  Justice Scalia’s commitment to his understanding of the Constitution’s original meaning is not all that’s at work here, however.  His commitment to formalism, and the imposition of bright-line rules, is even greater.  Indeed, the best way to understand the current Court’s division on many (though not all) questions of criminal procedure is as a split between formalists and pragmatists — between those inclined to enforce a bright-line constitutional rule and those inclined to account for practical considerations.

State legislators in Ohio are considering legislation that would enable criminal prosecutors to insist on a jury trial even when a criminal defendant waives that rate and asks for a bench trial. The Cleveland Plain Dealer reports:

Ohio prosecutors want to change the law to give themselves veto power when a criminal defendant chooses to have his case heard by a judge instead of a jury. . . .

“The whole jurisprudence system is based on the jury system,” [state legislator Lynn] Slaby said. “Until we do away with juries entirely, it’s more fair to have both sides have a right to a jury trial.”

As the article notes, this proposal is not revolutionary. Although criminal defendants have a constitutional right to trial by jury, they are not guaranteed the ability to waive this right.

My friend Jennifer Granick points me to an interesting new case, Hubbard v. Myspace (S.D.N.Y. June 1, 2011), that touches on a fascinating Fourth Amendment question: What are the territorial limits of search warrants for Fourth Amendment purposes? To be clear, the Hubbard case itself involved a statutory challenge, not a constitutional one. The plaintiff sued MySpace for complying in California with a state warrant issued in Georgia that was faxed to MySpace in California on the ground tat the Stored Communications Act, 18 U.S.C. 2703, did not allow MySpace to comply with the out-of-state warrant. As a statutory claim, the argument was pretty clearly incorrect. But at the end of his opinion (p.11) Judge Kaplan touches on a really interesting issue: What about the Fourth Amendment?

Specifically, the interesting issue is this: If the Fourth Amendment imposes a warrant requirement on government access to an e-mail account, which I think it does and the Sixth Circuit has expressly so held, is the warrant requirement satisfied by an out-of-state warrant from a jurisdiction far away with no authority to actually compel compliance with the warrant? Or is the warrant requirement only satisfied by a warrant issued locally, or at least in the same state or federal district? This issue generally doesn’t come up in traditional physical investigations because the police will get a local warrant to physically search a local location, and arrests generally don’t require warrants. But warrants for e-mail accounts are unusual: The police obtain the warrant and fax it to the ISP, and the Stored Communications Act contemplates out of state warrants. ISPs usually don’t have to comply with out of state warrants, as they are out of state and not binding on them: But the question I’m interested in here is, does the out of state warrant satisfy the warrant requirement?

I would think the best answer is that the warrant requirement does not have a territorial limit: For Fourth Amendment purposes, the warrant requirement is satisfied so long as a neutral and detached magistrate somewhere has found probable cause, established particularity, and signed the warrant authorizing the disclosure. I think that for a few reasons. First, the Eighth Circuit has expressly approved of the constitutionality of an out-of-state e-mail warrant in one case, United States v. Bach, which involved a Minnesota state warrant for an e-mail account that was faxed to Yahoo in California. Although Bach did not discuss the extraterritorial nature of the warrant, the approval of the facts of that case hints that the extraterritorial nature of the warrant doesn’t matter. Second, I think the territorial limits of courts to issue warrants is at least arguably the kind of statutory limit on state power that the Supreme Court has said is irrelevant to Fourth Amendment reasonableness in Virginia v. Moore, 128 S.Ct. 1598 (2008). Third, cases from the wiretapping context have held that judges in one district can authorize intercepts in other districts. See, e.g., United States v. Ramirez, 112 F.3d 849 (7th Cir. 1997) (Posner, J.)

Finally, if warrants do have territorial limits for purposes of the warrant clause, we need a theory for what those limits are, and figuring that out is actually kind of tricky. For example, imagine the rule is that the warrant requirement is satisfied only if the issuing judge’s power to issue warrants includes that physical location under the statutory warrant rules. That would mean that whether the warrant requirement is satisfied is only a matter of legislative grace, which seems arbitrary: Fiddling with the statutes would change the constitutionality of the search. Alternatively, you might try to argue that the territoriality is state by state, such that each magistrate has some implicit power to issue warrants in the state that authorizes the judge’s commission (or perhaps nationwide in the case of federal warrants). That’s a theory, but I don’t think it has much in the way of a constitutional basis. So putting the pieces together, I would say that the Fourth Amendment warrant requirement is satisfied by a warrant being issued somewhere, independently of whether it was issued in a particular state or district.

That’s unconstitutional, says a Ninth Circuit panel in yesterday’s Williams v. Cavazos decision (which seems correct to me). An excerpt:

As a general matter, the Sixth Amendment does not prohibit the mid-deliberation dismissal of jurors who are unable to serve or who engage in misconduct. In Miller, for example, we found no constitutional violation in the dismissal of two jurors after deliberations had begun: one of whom was sick with the flu, and another who had been intoxicated the previous morning and had fallen asleep during the rereading of testimony. To the contrary, we held that the “California substitution procedure followed by the trial court” — Penal Code section 1089 — was constitutional because it “preserved the ‘essential feature’ of the jury required by the Sixth and Fourteenth Amendments.” …

It is just as clear, however, that the Sixth Amendment does not allow a trial judge to discharge a juror on account of his views of the merits of the case…. The jury is the only actor permitted to determine guilt — not the judge. It is well-established, of course, that “a judge may not direct a verdict of guilty no matter how conclusive the evidence” in a criminal case. It would similarly vitiate the “essential” role of a jury to act as a “safeguard” against both the power of the state and the court for a judge to selectively dismiss jurors based on the views of the merits of the case they express during deliberations. Such dismissals are thus prohibited as well, because a court cannot “do indirectly that which it has no power to do directly.”

Indeed, no one, including the judge, is even supposed to be aware of the views of individual jurors during deliberations, because a jury’s independence is best guaranteed by secret deliberations, such that jurors may “return a verdict freely according to their conscience” and their “conduct in the jury room [may be] untrammeled by the fear of embarrassing publicity.” …

Accordingly, in deciding whether to discharge a juror mid-deliberation, the critical Sixth Amendment questions are whether, after an appropriately limited inquiry, it can be said that there is no reasonable possibility that the juror’s discharge stems from his views of the merits, and whether the grounds on which the trial court relied are valid and constitutional. If the answer to either question is no, the removal of the juror violates the Sixth Amendment. We will discuss the two questions separately….

[T]he record discloses a “reasonable possibility that the impetus for [Juror No. 6's] dismissal stems from the juror’s views on the merits of the case.” At least seven jurors expressed the view that Juror No. 6 did not believe that the evidence was sufficient to prove guilt of murder beyond a reasonable doubt, thereby making a total of two-thirds of the panel…. The juror’s views regarding the insufficiency of the evidence were thus made known to the prosecution as the result of a rigorous inquiry into the thought process and reasoning of Juror No. 6. Neither the trial court nor the Court of Appeal, however, even mentioned this clear evidence regarding the juror’s views as to the merits, or acknowledged the strong possibility that Juror No. 6 was a holdout juror for legitimate reasons….

Although the reason offered above is sufficient to require granting the writ on the ground that Juror No. 6′s discharge violated the Sixth Amendment, the trial court’s lack of “good cause” for removing the known holdout juror provides an independent reason for reaching the same conclusion….

Although refusing to follow the law or refusing to deliberate would be “good cause” for discharging a juror, the trial court expressly disclaimed any finding that Juror No. 6 was guilty of either, and the Court of Appeal affirmed that determination. The only good cause relied upon for dismissal of Juror No. 6 was “actual bias.” The court did not find, however, that Juror No. 6 was “biased” in any traditional sense of the term, as would have been the case if, for example, he had stated that he could not be impartial or had accepted a bribe related to the case. Nor did it find that he had “implied bias,” such as might have resulted from Juror No. 6 having a connection to one of the parties, or being related to someone who had either committed or been a victim of some similar crime.

Rather, the court found that the juror was “biased” for five overlapping reasons: (1) “the fact that he added his own words to the court’s instructions as to what the law is,” which “indicates where his mind is bent towards and that is biased against the prosecution in the matter”; (2) “his repeating of the severity of the charge in conjunction with his bringing up the subject of juror nullification,” which “establishes his state of mind that he’s bent in that regard, that he’s concerned about the severity of the charge, which means the severity of the punishment”; (3) when the judge “asked him what burden of proof he was relying on, he said it was a [sic] very, very convinced beyond a reasonable doubt,” which the judge believed to mean “higher than beyond a reasonable doubt because the charge is murder”; (4) the fact that “[h]e also disagrees with the felony murder rule”; and (5) the fact that “[h]e’s dishonest to me in stating that no juror including himself had discussed the severity of the charge, had not discussed juror nullification.”

[T]he bases for discharge relied upon by the trial judge [do not] constitute, under the circumstances of this case, “good cause” for removing a known holdout juror. [The court then goes on to deal with each of the five reasons. -EV]

Following up on my post from yesterday about the FBI’s new policy of using the “public safety” exception to Miranda to question terrorism suspects  — The NY Times has the text of the FBI’s memo, found here.

The larger interesting question is why should the new policy be limited to suspected terrorists.  Presumably FBI agents question many other suspects who pose a threat to the American people.  It seems to me that the FBI should use the recognized public safety exception in all circumstances where it is applicable, not just the relatively exotic situations where terrorism is involved.

The Justice Department has just announced new guidelines, apparently expanding the “public safety” exception to Miranda to allow extended questioning of terror suspects.  The WSJ has the story here. Such extended questioning will require approval of Justice Department lawyers.

How does Eric Holder reconcile these new guidelines with the position that he supported in Dickerson in 2000 (that the Miranda warnings were constitutionally required)?  Bill Otis has an interesting analysis of the contradiction here.

Previous VC posts on the subject of Miranda and public safety can be found here. Questioning terror suspects seems to me to be  the classic example of the need for a public safety exemption.  It does seem desirable to have Congress add its backing to the exemption by passing a statute confirming its agreement with the Justice Department guidelines.

People v. Diaz (N.Y. Sup. Ct. Jan. 11, 2011), has an interesting discussion of this issue (some paragraph breaks added):

Defendant Angelo Diaz stands charged with a number of felonies, including Attempted Murder in the Second Degree, on the theory that he was an accomplice in an attempt to shoot a police officer. The People intend to prove at trial that defendant shouted, in so many words, “shoot the cop” as his co-defendant, Angel Rivera, struggled with an officer for control of a pistol. However, the Daily News published an article just after the crime stating that, “according to authorities,” the co-defendant’s mother had shouted “shoot the cop.”

Defendant has served a subpoena on the Daily News in an effort to determine whether the source of the story’s report about the co-defendant’s mother was one of the two officers present at the time of the crime. Those officers are expected to testify about the “shoot the cop” statement. If they attribute the statement to defendant, and if one of the officers was the source for the Daily News article, defendant would seek to impeach the witness with his prior statement. If necessary, defendant would call a Daily News witness to attest that the officer had attributed the “shoot the cop” statement to someone other than defendant. [Footnote moved: The court offered the Daily News an opportunity to end this litigation by stating that the source of the report was not one of the two officers present at the time of the incident. The Daily News declined to accept the invitation, but in doing so did not indicate anything about who the source might be. -EV] …

[U]nder [New York's Press Shield Law (Civil Rights Law Section 79-h)], the identity of a confidential source is absolutely protected from disclosure…. If the subpoena at issue were a prosecution subpoena, that would end the analysis. But the subpoena is a defense subpoena. Defendant insists that his rights under the Confrontation Clause of the Sixth Amendment and under the Due Process Clause of the 14th Amendment trump the statutory and constitutional privileges of the Daily News. Under the facts of this case, this court agrees.

Continue reading ‘State-Law Journalist’s Privileges vs. Defendant’s Sixth Amendment Rights’ »

 Professor Guiora (a colleague of mine at Utah) and I recently debate the appropriateness of Miranda warnings in the context of terrorism investigations.  Here’s a link to the Federalist Society’s podcast of the debate, which revolves around whether or not the “public safety” exception to Miranda  should apply in the context of questioning suspected terrorists.  I argue that, under current doctrine, the exception easily applies; Professor Guiora argues that using the exception would put us on a slippery slope, sliding toward the destruction of civil liberties.

Today at 12:15 at the University of Utah College of Law I will be debating my colleague Amos Guiora about whether Miranda rights should be extended to terrorists.  I have previously blogged here and here about my view that Miranda’s “public safety” exception means that law enforcement officers investigating terrorist incidents need not give Miranda warnings.  I thought I’d briely lay out my argument a bit more fully now in anticipation of the debate.

The case of Umar Farouk Abdulmautallab (the so-called “Christmas Day Bomber”) usefully frames the issue.  According to public reports, Abdulmutallab spoke openly to FBI agents in his initial 50-minute interrogation — questioning that took place before he was Mirandized.  He then received treatment for his burns. And five hours after his initial interrogation a second team of interrogators was brought in to question him. These interrogators were part of a “clean team,” brought in to interrogate him after he was read his Miranda rights. The “clean team” began by reading Abdulmutallab his rights. And Abdulmutallab, advised of his right to remain silent, chose to exercise it.

The policy question here is why would anyone want to give Abdulmautallab Miranda warnings?  As Stewart Taylor forcefully wrote here:  

But no reasonable person could doubt that starting out with “you have the right to remain silent” is not the way to save lives.  Yet this is essentially the policy into which the Obama administration has locked itself by insisting that it did the right thing when it read Umar Farouk Abdulmutallab, the would-be Christmas Day bomber, his Miranda rights after only 50 minutes of questioning and a hospital visit.

The only reason that I can see for giving Miranda warning in such a situation is that the is a constitutional requirement to do so.  But Miranda has been interpreted (in New York v. Quarles) as containing a “public safety” exception, allowing police officers to jettison the Miranda procedures in situations where the question is motivated by preventing further danger to the public.  In that case, for example, police officers were allowed to question suspect Quarles aboutt the location of gun he had apparently discarded in a supermarket. 

The exact parameters of the public safety exception are unclear.  But if any circumstance would appear to involve overriding public safety concerns, it would be a circumstance involving a terrorist investigation.  Indeed, the Second Circuit has allowed un-Mirandized question of terrorist suspects about how bombers were made and how to disarm bombs that were uncovered.  U.S. v. Khalil, 214 F.3d 111 (2d Cir. 2000).  Questioning of suspects like Abdulmutallab would seem to comfortably fit within the exception.

Because there appears to be some legal uncertainty about whether the public safety exception covers terrorist investigations, it would be useful for Congress to weigh in on the subject and clearly express its view.  Here’s one way a statute covering terrorist investigations could be drafted:

¨“When a law enforcement officer questions any suspect arrested for terrorist offenses found in chapter 113B of Title 18, or comparable offenses under state law, a situation involving the public safety shall automatically be deemed to exist and the officer need not provide any advice of rights to the suspect.  Any voluntary statements made by the suspect shall be admissible in any prosecution thereafter brought by the United States or by the District of Columbia.”

I will be interested to see what Professor Guiora and others think of my proposed statute.

Update:  Rick Pildes from NYU has alerted me to his excellent post, found here on Balkinization, also arguing for a codification of the Miranda public safety exception in terrorist situations.  Here an excerpt from his argument:

Congress [should] . . .  enact legislation to define the contours and boundaries of the public-safety exception to Miranda in terrorism cases. The public-safety exception already exists: the question is how it ought to apply in contexts, such as terrorism investigations, in which there is uncertainty because the courts have not yet had to define the scope of the exception. Congress could define the circumstances in which law enforcement can engage in non-coercive questioning of terrorist suspects, without Miranda warnings, for purposes of gathering general intelligence information, purpose (2) above, while still being able to use any statements against that suspect at trial. Informed by counterterrorism experts, Congress could specify the time period in which such questioning is necessary and permissible (hours? a day? several days?). Congress could consider authorizing a brief period of initial, non-Miranda interrogation, but then require law enforcement to get judicial authorization for any further period of such questioning. In other ways, Congress and the President could codify what these two institutions jointly believe is the appropriate and necessary contours of an intelligence focused, non-Miranda period of questioning.

Further update:  I’m embarrassed that I didn’t cite co-blogger Orin Kerr’s analysis of this same issue, which can be found here.

Do innocent suspects ever confess to crimes?  Yes, and sometimes with extensive detail about the crime.  How could this happen, short of police coercion?  The NYT reports on research by UVa law professor Brandon Garrett on the question.

New research shows how people who were apparently uninvolved in a crime could provide such a detailed account of what occurred, allowing prosecutors to claim that only the defendant could have committed the crime.

An article by Professor Garrett draws on trial transcripts, recorded confessions and other background materials to show how incriminating facts got into those confessions — by police introducing important facts about the case, whether intentionally or unintentionally, during the interrogation. . . .

Professor Garrett said he was surprised by the complexity of the confessions he studied. “I expected, and think people intuitively think, that a false confession would look flimsy,” like someone saying simply, “I did it,” he said.

Instead, he said, “almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.”

State and federal evidence rules generally bar the prosecution from introducing evidence of defendant’s past crimes to show a propensity on the defendant’s part to commit similar crimes. If, for instance, the defendant is charged with child molestation, the prosecution can’t introduce evidence that defendant had molested other children to show that defendant likes molesting children and therefore to support the prosecution’s claim that he molested this child.

Past bad act evidence may be introduced for other purposes, such as to show motive (e.g., the defendant killed this victim because the victim witnessed another killing by defendant and was thus a threat to the defendant). But it may not be introduced simply to show propensity to commit this crime, even if it is relevant to do that (for instance, because it shows that defendant likes to commit such crimes, and thus is more likely than the average person to commit the crimes). And this isn’t just a rule of sufficiency of the evidence (i.e., that propensity evidence isn’t enough to prove guilty beyond a reasonable doubt) — it makes the evidence inadmissible even as one part of the prosecution’s broader case.

But that’s generally just a statutory or common-law rule, and many legislatures have changed it by statute in certain ways, especially for sex crimes. Iowa Code § 701.11, in particular, provides that,

In a criminal prosecution in which a defendant has been charged with sexual abuse [defined later in the section -EV], evidence [that constitutes clear proof] of the defendant’s commission of another sexual abuse is admissible and may be considered for its bearing on any matter for which the evidence is relevant. This evidence, though relevant, may be excluded if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

But in State v. Cox, decided April 30, the Iowa Supreme Court held that the admission of such propensity evidence violates the Iowa Constitution’s Due Process Clause. “The policy against admissibility of general propensity evidence stems from ‘a fundamental sense that no one should be convicted of a crime based on his or her previous misdeeds.’ ‘A concomitant of the presumption of innocence is that a defendant must be tried for what he did, not for who he is.’ This concept is ‘fundamental to American jurisprudence.’” In this, the court departed from the view of federal courts and most state courts, and adhered to the minority view, which until then apparently was followed only by the Missouri Supreme Court.

An interesting decision; I’m not sure it’s right, but I wanted to pass it along. Since it interprets the Iowa Constitution, the U.S. Supreme Court can’t review it, though Iowans could amend the constitution if they disapprove of this decision.

This morning the U.S. Court of Appeals for the Sixth Circuit issued an opinion in United States v. Taylor, affirming the district court’s suppression of evidence (a handgun and ammunition) found in a shoebox.  Judge Gilman wrote the opinion for the court, joined by Judge Daughtrey.  Judge Kethledge dissented.  His dissenting opinion begins:

The majority today extends to shoeboxes a degree of Fourth Amendment protection that our court has previously afforded to luggage. I agree that our precedents permit this extension, but I do not think they compel it. I dissent because I think the extension unwise.

The apartment’s tenant here gave consent for the officers to search it. I think that consent ought to be effective as to an unsecured container on the premises, absent a clear indication that some other person exclusively controls the container. Luggage might routinely meet that test, but shoeboxes I think should not, absent some unusual circumstance not present here. It should take more than a shoebox to vitiate a resident’s consent to search the premises.

Over at Crime and Consequences, Kent Scheidegger has a couple of interesting posts on former death row inmate Timothy Hennis.  He was found guilty yesterday of premeditated murder by a military jury, even though he has long been listed on the “innocence list” maintained by the Death Penalty Information Center. 

Of course, it is possible to make a mistake in assembling a list of innocents.  By the Death Penalty Information Center, quoted in the New York Times (as recounted on the blog) has this curious defense of including Hennis on the list:

Richard C. Dieter, the executive director of the Death Penalty Information Center, said in an interview that Mr. Hennis’s name would be removed from the innocence list. But Mr. Dieter defended the list and its name.  Being found “not guilty” is not innocence in the sense of “innocent as a newborn babe,” he said, and “we’ve never said that’s what the innocence list is about.”

I’ve always understood the DPIC to be arguing that their list contained only proven “wrong man” cases — that is, cases in which the wrong person was convicted of a crime he did not commit.   If all the DPIC is arguing is that the list contains the names of people who the state failed to prove guilty beyond a reasonable doubt, then it needs to be clear on that point in their future discussions of the death penalty.

Have you heard of the “14-Day Clause” of the Constitution? If not, you should take a look at the Supreme Court’s opinion today in Maryland v. Shatzer. Shatzer is an intriguing example of how the Supreme Court makes rules in the area of criminal procedure. It’s particularly notable in that it introduces a very rare (but not unprecedented) numerical rule to implement constitutional protections.

Shatzer is a case on the law of police interrogations when a suspect is in police custody. It’s one of the dozens of spinoff decisions from the 1966 blockbuster Miranda v. Arizona, also known as the “you have a right to remain silent” case. The specific question in Shatzer is whether a detained criminal suspect who has asked to speak with a lawyer can ever be questioned again without a lawyer present. In a 1981 case, Edwards v. Arizona, the Supreme Court held that when a detained suspect asks to speak with a lawyer, the police cannot try to persuade him to change his mind. They have to stop the questioning, and they cannot restart the questioning, even after time passes and the suspect has met with his attorney, unless the suspect reinitiates the questioning on his own.

The issue in Shatzer was whether that rule continues to apply if the suspect has been released from police custody and is then rearrested. In particular, do the police have to honor the earlier request for a lawyer? The Miranda protections don’t apply when a suspect is no longer in custody. When the suspect is arrested again, however, he regains his Miranda rights. The question is, does the break in custody reset the clock on the effect of the suspect’s earlier request to speak with a lawyer? Or does the fact that the suspect is released from custody make no difference at all, such that the police are forever barred from approaching the suspect without a lawyer whenever he is in custody?

Two practical points make answering this question unusually hard. Point One is that the police need clear rules that answer the question with certainty. It doesn’t work to give the police complex legal tests to apply on the fly: They need clear rules to know what they can and cannot do. Point Two is that the two obvious candidates for clear rules each create absurd results. If you say that any break in custody, however short, resets the clock, then the protections are meaningless. If a suspect asks to speak to an attorney, the police will just “release” the suspect for 30 seconds, re-arrest him, and then restart the interrogation. That doesn’t work. On the other hand, if you say that the break in custody has no effect at all, then all sorts of strange consequences follow. A request to speak with an attorney in one case will inoculate the suspect from police interrogations for the rest of his life for all of his unrelated crimes. A request to speak to an attorney at the age of 18 in one case would bar questioning a half-century later for something entirely different. That doesn’t work, either.

So what to do? What clear rule on how long the break must be to reset the clock is workable here? Enter the 14-day rule, announced today in Shatzer in a majority opinion by Justice Scalia:

We think it appropriate to specify a period of time [at which time the clock is reset]. It seems to us that period is 14 days. That provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.

The 14-day limitation meets Shatzer’s concern that a break-in-custody rule lends itself to police abuse. He envisions that once a suspect invokes his Miranda right to counsel, the police will release the suspect briefly (to end the Edwards presumption) and then promptly bring him back into custody for reinterrogation. But once the suspect has been out of custody long enough (14 days) to eliminate its coercive effect, there will be nothing to gain by such gamesmanship—nothing, that is, except the entirely appropriate gain of being able to interrogate a suspect who has made a valid waiver of his Miranda rights.

As a matter of policy, I think that’s a pretty good rule. But why precisely 14 days? That is, 336 hours, or exactly 20,160 minutes? There is no 14-day Clause in the Constitution. (I checked.) Why not 15 days? Or 13.491 days?

As far as I can guess, the only reason 14 days was chosen is that it’s easy to remember and seemed in the right ballpark. Jews started measuring seven days as a time period in the 6th Century BC; the Romans then adopted it, measuring time in 7-day weeks; and two-thousand-odd years later, on February 24, 2010, a majority of the Justices on the Supreme Court though that one of those was too short, three was too long, and two seemed about right. And how did the Justices know that 14 days would be about right? Based on their extensive experience being arrested, perhaps? Presumably not. But no matter. Fourteen days seemed about right, and so the 14-day rule became the law.

If you’re wondering how Justice Scalia could end up writing an opinion that sounds so legislative — picking 14 days out of thin air — you need to know Justice Scalia’s history with Miranda. Justice Scalia intensely dislikes the entire line of Miranda cases. The Court has sometimes referred to the Miranda rules as “prophylactic.” That is, they are rules created to protect the Constitution, and enforced as constitutional law, but not necessarily constitutional rules themselves. In his dissent in Dickerson v. United States, Justice Scalia argued that this entire approach was illegitimate. He would overthrow the entire line of cases as an illegitimate power grab.

It’s not clear how many Justices continue to see Miranda as just “prophylactic” after Dickerson. But Justice Scalia still does. And he has long had a special dislike for the Edwards rule in particular. (Remember, that’s the rule that the police have to stop interviewing someone, and can’t restart questioning, if he asks for a lawyer.) In a 1990 dissent, Scalia described the Edwards line of cases as “prophylaxis built upon prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction upon law enforcement.”

But if you can’t beat ‘em, join ‘em. Or at least join ‘em if that means you get to write the opinion that substantially limits the effect of the Edwards rule. And if you’re going to write an opinion that you see as merely “prophylactic,” presumably you’re not bound by your usual approach to constitutional interpretation. With apologies to Chief Justice Marshall, it is not a Constitution you are expounding. So explicitly policy-based rulemaking becomes more understandable, even if it’s jarring coming from Justice Scalia.

It’s still too early to have much of an idea what the Supreme Court might be doing in Harrington v. Richter, 09-587—but that won’t stop me from blathering about it anyway. The Court has relisted only twice, at the January 15 and 22 conferences, and it has not yet called for the record. But Richter is in some ways a stereotype of a summary reversal candidate: it’s from the Ninth Circuit (check), the opinion reverses a murder conviction on habeas (check), there’s a vigorous dissent from a conservative judge (Judge Jay Bybee, joined by Judges O’Scannlain, Kleinfeld, and Ikuta–check), and perhaps most importantly of all, the author of the majority opinion is liberal lion Judge Stephen Reinhardt (check).

It is often repeated that Judge Reinhardt has said of the Supreme Court, “They can’t catch ‘em all.”  Whether he said it or not, the Justices now act as if they must try. Thus, if you search “Reinhardt” just on this webpage, you get (among other entries) “Reinhardt Reversed in Buttons Case,” “Supreme Court Opens Term with Reinhardt Reversal,” “Reinhardt Reversed for Third Time in Same Case,” and the not-quite-as-snappily-titled “First Opinion in an Argued Case in OT08” (“the Court reversed a Ninth Circuit panel of Reinhardt, Betty Fletcher, and Dorothy Nelson”). Reading about these cases gives one an extreme form of déjà vu, more aptly described as Groundhog Day Syndrome.

There’s one thing about Harrington v. Richter that makes this case a bit more unusual as a summary reversal candidate: it’s a decision of the en banc court, or at least an en banc panel under the Ninth Circuit’s en-banc-lite procedure. But the evident importance that moved the Ninth Circuit to take the case en banc and the greater visibility and influence of such opinions makes it more likely the Supreme Court will conclude the case warrants review in some manner. And besides, summary reversal of an en banc Ninth Circuit decision is hardly unprecedented. See, e.g., Gonzales v. Thomas, 547 U.S. 183 (2006); California v. Roy, 519 U.S. 2 (1996); INS v. Wang, 450 U.S. 139 (1981).

The case involves California’s prosecution of Joshua Richter and Christian Branscombe for murdering Patrick Klein and trying to kill Richter’s marijuana dealer, Joshua Johnson. The state claimed that Richter and Branscombe had shot Klein and Johnson while they were trying to steal Johnson’s gun safe; the defense claimed that Johnson had “freaked out” while high and accidentally shot Klein while trying to shoot Branscombe (for reasons that aren’t completely clear to me, although I guess you can’t demand clarity of someone who is, by hypothesis, freaking out). The evidence apparently jibed with Johnson’s stealing-my-gun-safe account. Believing that the case was sufficiently strong that they did not require more, the police, according to the majority, “did not pursue an in-depth forensic investigation” and did not immediately perform blood typing or spatter analysis nor attempt to discover whose blood had pooled in the bedroom doorway. After the trial began, the state performed a blood spatter analysis of the crime scene and tested some blood spattered above the pool, which the experts said indicated that Klein could not have been killed in the doorway (as Richter claimed) and that the spattered blood there was not Klein’s.

Richter and Branscombe were convicted. After his conviction became final, Richter’s federal habeas petition was rejected by the district court and a unanimous panel of the Ninth Circuit. But then the Ninth Circuit granted rehearing en banc.

In a 39-page opinion that opens by quoting Sun Tzu’s The Art of War (“To . . . not prepare is the greatest of crimes; to be prepared beforehand for any contingency is the greatest of virtues”), Judge Reinhardt, joined by Chief Judge Kozinski and Judges Silverman, Wardlaw, Fisher, Paez, and Smith, held that defense counsel’s performance was constitutionally deficient because he had not attempted to obtain forensic evidence to establish that the blood pool in the doorway was Klein’s. The “failure to consult any forensic expert constituted a threefold abrogation” of counsel’s duty to provide effective assistance by failing to investigate adequately before settling on a trial strategy, by failing to determine how the forensic evidence might assist the defense, and by failing to consult experts who could have assisted at trial. The majority held that the error was prejudicial, and the state court’s contrary conclusion was an objectively unreasonable application of the governing case, Strickland v. Washington. Experts obtained later had given affidavits saying that Johnson could not have been standing while bleeding in the doorway (as Johnson claimed) and that the experts “could not exclude the possibility” that the blood pool contained both Johnson and Klein’s blood.

In a 46-page dissent, Judge Bybee called the majority opinion “a model of the intrusive post-trial inquiry into attorney performance long rejected by the [Supreme] Court.” He argued that defense counsel’s decision not to pursue forensic evidence was reasonable given that even the state did not focus on it until mid-trial and because pursuing it “might well have resulted in the discovery of additional inculpatory evidence.” Accordingly, it was “perfectly reasonable” for defense counsel simply to cross-examine the prosecution witnesses as they came and not attempt to present affirmative forensic evidence. The dissenters said that the majority had “plainly enlarge[d] the constitutional duty of defense counsel to seek out and present expert testimony,” which was far more than the Supreme Court previously had required.

I repeat that it’s still too early to have much of an idea what the Court is doing with this case. It has only relisted twice, which isn’t that unusual, and the Court hasn’t called for the record. The Court could simply be taking a close look at the case, as befits it when an en banc court of appeals has vacated a murder conviction and a state has petitioned for certiorari. But a majority of the Supreme Court has a narrower view of effective assistance of counsel than the Ninth Circuit majority seemed to employ, as demonstrated in a summary reversal earlier this term in Bobby v. Van Hook, where the state didn’t even have the benefit of the tailwind which AEDPA gives it (see slip op. 3). And the Court has repeatedly summarily reversed in AEDPA cases to drive home that habeas relief is not to be granted unless a state court has unreasonably applied clearly established Supreme Court precedent.

As the Supreme Court comes to the end of its nearly month-long recess, I thought it’d be good to review some of the cases the Court has relisted repeatedly in anticipation of what might be coming when the orders list is released Monday Feb. 22.   Time permitting–and that is a big “if”—this will be the first of what I hope will be several dull posts.

To begin with, it’s not entirely clear what cases the Court relisted at its January 22 conference, because it hasn’t updated the dockets of many cases that were on for that conference—the last entry still states that they’re on for conference January 22.  But because the Court has updated the dockets of cases in which cert was denied, it seems a safe bet that the other cases have been relisted (or are being held for another case).

First up is Thaler v. Haynes, 09-273, on cert to the Fifth Circuit (panel consisting of Jolly, Dennis, and Clement). This case was relisted at the 11/30, 12/4, 1/15, and (apparently) 1/22 conferences; on December 7, the Court called for the record, which arrived on December 31 and January 11. This case involves a convicted murderer’s challenge to the prosecution’s allegedly race-based use of peremptory strikes under Batson v. Kentucky, 476 U.S. 79 (1986). A different trial judge (who, respondent states, was cleaning two pistols on the bench at the time—the case is, after all, from Texas) handled the individual questioning of venire members, so the judge who did the group questioning and conducted the Batson hearing did not also observe the conduct that the prosecutor says precipitated the peremptory strikes.

The Fifth Circuit panel held that, because the judge who assessed the Batson challenge was not the same judge who had questioned the individual venire members, the Texas state courts were not able to perform the sort of factual inquiry Batson requires (which the panel throught includes considering the demeanor of both the rejected juror and the prosecution). Perhaps more significantly, the panel refused to grant the state court decision deference under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which requires that habeas relief not be granted unless the state court proceeding resulted in “a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” The Fifth Circuit reasoned that, because the judge who presided over the Batson hearing had not observed the individual questioning of venire members, “we cannot * * * apply AEDPA deference to the state court, because the state courts engaged in pure appellate fact-finding for an issue that turns entirely on demeanor.”

The Court has observed that Batson “involves evaluating ‘the persuasiveness of the justification’ proffered by the prosecutor,” Rice v. Collins, 546 U.S. 333, 338 (2006), and there is language in Hernandez v. New York, 500 U.S. 352 (1991), and, to a lesser extent, Rice v. Collins, that the “best evidence often will be the demeanor of the attorney who exercises the [peremptory] challenge,” Hernandez, 500 U.S. at 365 (plurality opinion of Kennedy, J.). The judge in question evidently concluded the strikes were not raced-based after observing the prosecutor’s demeanor in explaining the strikes, even if he did not also observe the witness’s demeanor. Texas SG Jim Ho argues that that is enough under Batson and that summary reversal is appropriate.  Texas asks the Court to clarify that language in Snyder v. Louisiana, 128 S. Ct. 1203, 1208 (2008) (which Texas calls “dicta”) that “the trial court must evaluate * * * whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor” does not mean that a judge other than the original trial judge cannot adjudicate a Batson hearing.

It might be that someone is simply writing a dissent from denial of cert, although the fact that the Court called for the record suggests that the Court might be considering summary reversal; the Court certainly summarily reverses with some frequency in habeas cases because of the deferential standard of review required by AEDPA. If the Court goes the summary reversal route, I suspect it will do so by reasoning that the grounds of relief relied on by the Fifth Circuit were not yet clearly established in Supreme Court precedent, and there is no textual basis for failing to apply the forgiving AEDPA standard of review simply because the factfinder did not personally observe all the conduct.  I think the Supreme Court will be most interested in reversing the statement that state court decisions aren’t entitled to deference under AEDPA unless they’re based on firsthand assessment of demeanor. 

Time permitting, I hope to be back in the next couple of days to discuss Los Angeles County v. Humphries, 09-350 (relisted on 1/8/10, 1/15, and, apparently, 1/22), and Harrington v. Richter, 09-587 (relisted on 1/15 and, apparently, 1/22).

UPDATE: Today (Feb. 16) the Supreme Court finally updated its docket to reflect the January 22 relists.

Yesterday I expressed my concern about the decision to Mirandize the Christmas day bomber.  Today’s Wall Street Journal has this excellent editorial forcefully criticizing the Administration’s decision to do so.  Here’s an excerpt:

On “Fox News Sunday,” Chris Wallace asked White House Press Secretary Robert Gibbs whether the President was told that Abdulmutallab was Mirandized after only 50 minutes of interrogation. Mr. Gibbs said the decision was made “by the Justice Department and the FBI” and insisted they got “valuable intelligence.”

This is awful. This talky terrorist should have been questioned for 50 hours, not 50 minutes. More pointedly, Abdulmutallab should not have been questioned by local G-men concerned principally with getting a conviction in court. He should have been interrogated by agents who know enough about the current state of al Qaeda to know what to ask, what names or locations to listen for, and what answers to follow up. The urgent matter is deterring future plots, not getting Abdulmutallab behind bars.

It gets worse. Appearing before Congress last week, FBI Director Robert Mueller admitted that the HIG group essentially doesn’t even exist yet. They haven’t pulled it together.

Recall that in August Mr. Obama announced the intention to create a multi-agency HIG, transferring lead responsibility for interrogations away from the CIA and into the FBI, with techniques limited to the Army Field Manual.

And worse. As a Wall Street Journal account of last week’s Senate Judiciary hearings noted, the HIG team is intended only for interrogations overseas; the Administration hasn’t decided whether to use it domestically. In any event, that’s moot until there is an HIG team.

As the facts are emerging, it appears that this was a mistake of the first order.  Abdulmutallab admitted he was from al Qaeda and was speaking “openly.”  But then he was given a break and given Miranda warnings, after which he apparently stopped giving useful information.

It is instructive to compare the solicitude for Abdulmutallab’s Miranda rights with this headline story  in today’s news:  ”Report: Al-Qaeda Aims to Hit U.S. with WMDs:  Huge Attack is Top Strategic Goal, Not ‘Empty Rhetoric,’ Ex-CIA Official Says.”  Would Abdulmutallab have given us useful leads to pursue in stopping such an attack had he been questioned further rather than Mirandized?  Unfortunately, we will never know.

The Supreme Court released one opinion today — and it was not the eagerly anticipated Citizens United.  The Court released another habeas decision instead.  In Smith v. Spisak, a unanimous Court reversed the U.S. Court of Appeals for the Sixth Circuit’s grant of death-row inmate Frank Spisak’s habeas petition.  Justice Breyer wrote the opinion, and Justice Stevens wrote an opinion concurring in part and concurring in the judgment.

All nine justices agreed that even if Spisak’s trial counsel had been ineffective at the penalty phase, there was no reasonable probability that he was prejudiced by this fact.  The Court also held that the trial court’s mitigation jury instructions did not violate clearly established Federal law. Justice Stevens disagreed on this latter point, but nonetheless concluded Spisak was not entitled to relief because his conduct had so “alienated and ostracized the jury, and his crimes were monstrous” that there was no reasonable probability of a different outcome.

This is the second reversal of a Sixth Circuit decision granting a habeas petition this term.  (The first was Bobby v. Van Hook.)  Three more Sixth Circuit habeas cases remain, Renico v. Lett, Berghuis v. Thompkins, and Berghuis v. Smith.  Of note, all five cases involve the review of pro-defendant appellate decisions.

I previously blogged on the Spisak case here.

[NOTE: As initially posted, I inadvertantly omitted one of the cases.]

This week, for the third time this term, the Supreme Court reversed a lower court’s handling of an ineffective assistance of counsel claim in a capital case with a per curiam opinion. In the first two cases, Bobby v. Van Hook (6th Circuit) and Wong v. Belmontes (9th Circuit), the Court vacated lower court decisions in favor of capital defendants.  In each case, the Court thought the appellate court had been too solicitous of the defendant’s ineffective assistance of counsel claim.  Yet this week in Porter v. McCollum (11th Circuit), the Court reversed a decision that had rejected the defendant’s claim of ineffective assistance of counsel.  In all three case, the Court made its decision without oral argument (indeed, without the benefit of briefs beyond those from the cert petition stage).  Thus, it would appear the Court is quite unhappy with how appellate courts are handling ineffective assistance claims.

On Friday, in Johnson v. Sherry, a divided panel of the U.S. Court of Appeals for the Sixth Circuit vacated the district court’s denial of William Johnson’s petition for a writ of habeas corpus and remanded the case for additional proceedings to determine whether Johnson received inadequate assistance of counsel.  In his habeas petition, Johnson maintained that his representation had been constitutionally inadequate because his attorney failed to object to the temporary exclusion of the public from his murder trial.  Judge Clay delivered the opinion of the court, joined by Judge Cole.

Judge Kethledge dissented from the court’s judgment.  His dissenting opinion begins:

In defending a murder charge, it is a bad idea, I think, to leave the judge with a smoldering suspicion that your client had a role in killing two of the prosecution’s key witnesses before trial. A lawyer who minimizes that danger—by consenting to, rather than fighting, closure of the courtroom during the testimony of three surviving witnesses, out of a total of 18 testifying witnesses in the case—does not thereby render constitutionally ineffective assistance of counsel. That is all the more true, in my opinion, when there is not a shred of evidence that the closure had the slightest effect on the trial’s outcome.

The majority concludes otherwise. The majority suggests that the closure fight here was one worth having—indeed, that it was constitutionally mandated—its ethereal upside and concrete downside notwithstanding. The majority then sidesteps the absence of any actual prejudice resulting from Johnson’s consent to the closure—and with it, the plainly stated actual-prejudice requirement of Strickland v. Washington, 466 U.S. 668 (1984)—by holding that Johnson need not show any prejudice at all in support of his ineffective-assistance-of-counsel claim. That holding is not supported by “clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1), which means that we are without power to impose it on the Michigan state courts in this habeas case. I respectfully dissent.

It seems to me the majority’s opinion is a bit of a stretch, and Judge Kethledge has the better of the argument under existing law.  The Supreme Court has been anything-but-bashful in reviewing alleged ineffective assistance of counsel claims of late.  (See, for instance, today’s per curiam opinion in Wong v. Belmontes and last week’s decision in Bobby v. Van Hook.) So, even though this is not a capital case, I would not be surprised were this case reversed en banc if not by the Supreme Court.

The U.S. Supreme Court held, in Ballew v. Georgia, that the constitutional right to a jury trial requires a jury consisting of no fewer than six persons for non-petty offenses.  Does this standard apply in military courts-martial?  Not according to the U.S. Court of Appeals for the D.C. Circuit.

This morning, the the D.C. Circuit rejected Kevin Sanford’s claim that his conviction by a military court-martial consisting of fewer than six persons violated his due process rights.  Judge Rogers opinion for the court summarizes the case as follows:

In challenging his conviction by a military court-martial consisting of less than six persons, Kevin Sanford invites this court to hold that his rights under the Due Process Clause of the Fifth Amendment were violated. He relies
on the Supreme Court’s announcement of a constitutional minimum six-person jury for the trial of civilian, non-petty offenses in Ballew v. Georgia, 435 U.S. 223 (1978), and suggests it is the government’s burden to show that his due process rights were not violated. Because Ballew was grounded in the Sixth Amendment right to a jury trial, however, Sanford is actually seeking a new due process right to a court-martial panel of a minimum size. Sanford’s focus on rebutting the government’s assertions thus fails to engage the appropriate inquiry under Weiss v. United States, 510 U.S. 163 (1994), which is “whether the factors militating in favor of [the proposed rule] are so extraordinarily weighty as to overcome the balance struck by Congress.” . . . Because Sanford failed to
engage this standard before the military courts, their resolution of his claim suffered from no fundamental defect and was properly upheld by the district court.

The Supreme Court’s conclusion regarding minimum jury size in the civilian system was based on empirical  studies.  . . . Sanford presented no similar empirical evidence regarding the military justice system, which
has features to ensure accurate fact finding not found in the civilian justice system. Rather, Sanford contends that Ballew reflects a conclusion about a fundamental right that is required by due process under both the Fifth and Fourteenth Amendments. Still he fails to show that the empirical data underlying Ballew’s holding applies with equal force to the military justice system, which is based on Congress’ balancing of interests, some of which are unique to the military. Doubtless it is fundamental that there be accurate fact finding under the justice system Congress established in the Uniform Code of Military Justice, . . . but Sanford fails to show that the design of the military system is so incompatible with that principle as to violate due process.  Accordingly, we affirm the dismissal of his complaint.

I haven’t blogged recently about the Ninth Circuit’s blockbuster computer search and seizure decision in United States v. Comprehensive Drug Testing, although not because it hasn’t been on my mind: Among computer crime law folks, it’s topic #1 these days. Indeed, since the en banc decision was handed down, it seems that every conference and informal gathering in the field eventually morphs into trying to figure out what the majority was smoking opinion means, how judges should comply with it, how law enforcement should respond to it, and whether and how long it will be until it is overturned.

Closer to home, I had to make a quick decision whether to put the opinion into the 2nd edition of my computer crime law casebook, which is at the printers right now. I ended up deciding not to include it, as I think the odds favor it being overturned within a year or two. I figured it was better to include the opinion in a supplement in the meantime rather than include it in the main book, as you can easily take a case out of a supplement but not the book itself.

But exactly how the case was going to be overturned is another matter. The most remarkable parts of the opinion are just lists of new rules, announced without any apparent authority or even a case or controversy. We don’t yet know if DOJ plans to file a cert petition in the case, although the procedural posture is tricky: DOJ could try to challenge some other aspect of the case and get that part scrapped in the process, but it’s hard to mount a direct challenge to what seems to be dicta. The main alternative for DOJ would be to let this case stand, let the system struggle with it for a few months or a year until there is a clear split, and then take the case to the Supreme Court. But that’s not a great option, as it means an intervening period when no one knows what the rules are for obtaining and executing search warrants for digital evidence.

In light of those somewhat awkward possibilities, I was intrigued to learn that the Ninth Circuit entered an order yesterday addressed to the parties in the case asking them to brief whether the case should be reheard by the full en banc court:

KOZINSKI, Chief Judge:
By November 25, 2009, the parties shall file simultaneous briefs addressing whether this case should be reheard en banc by the full court.

Now, wait, you’re wondering, wasn’t the case already heard by the full court? No, it wasn’t: The Ninth Circuit has so many active judges that its en banc panels consist of only about a third of its active judges. As Wikipedia explains:

In other circuits, en banc courts are composed of all active circuit judges, plus (depending on the rules of the particular court) any senior judges who took part in the original panel decision. By contrast, in the Ninth Circuit it is impractical for twenty-eight or more judges to take part in a single oral argument and deliberate on a decision en masse. The court thus provides for a “limited en banc” review of a randomly-selected 11 judge panel. This means that en banc reviews may not actually reflect the views of the majority of the court, and indeed may not include any of the three judges involved in the decision being reviewed in the first place.

But the Ninth Circuit’s rules provide for an en banc from the en banc – a super banc? – of all of the judges. As Judge Kozinski explained in 2003 testimony:

In the unlikely event that six judges might command a majority of an 11-judge en banc court and express a view inconsistent with the views of the other 21 active judges on the court, the circuit rules provide for review by the full court upon the request of any judge. This has never happened since the limited en banc rule was adopted by the Court in 1980.

Will Comprehensive Drug Testing be the first such case? On purely selfish grounds, a small part of me hopes not: As a public law scholar, you want your field to be red hot, and the initial en banc decision here is so way “out there” that it would help bring the field to the frontburner if it stays on the books. But from a less selfish perspective, it’s hard to think of a better case to take to the full court. The en banc decision dropped a bomb on the entire computer forensics world, without any briefing or even notice, and most of its rules are hard to square with relevant Supreme Court doctrine and/or the Federal Rules of Criminal Procedure. Plus, it’s difficult to figure out what the new rules really mean in practice, as they are written in such vague language that it’s hard to know what to make of it. The opinion has the agents, prosecutors, and magistrate judges all scratching their heads trying to figure out what to do. So I would think this is a very appropriate case to take super-en-banc. Stay tuned.

This Chicago Sun-Times article reports:

A Cook County judge today threw out an indictment against a Chicago Police officer accused of falsifying drunken driving arrests.

Judge James M. Obbish said prosecutors were wrong to rely on statements Officer John Haleas gave to police investigators during an internal investigation of his conduct.

Under union rules, such statements cannot be used against an officer in a criminal case, the judge said, ruling on a defense motion to dismiss the case….

I don’t have access to the judge’s opinion — if any of you can point me to it, I’d love to see it — but I highly doubt that union rules (even in Chicago) can affect the admissibility of evidence in criminal trials.

But the Supreme Court’s caselaw on the privilege against self-incrimination, and in particular Garrity v. New Jersey might well be doing the work here:

Appellants were police officers in certain New Jersey boroughs. The Supreme Court of New Jersey ordered that alleged irregularities in handling cases in the municipal courts of those boroughs be investigated by the Attorney General, invested him with broad powers of inquiry and investigation, and directed him to make a report to the court. The matters investigated concerned alleged fixing of traffic tickets.

Before being questioned, each appellant was warned (1) that anything he said might be used against him in any state criminal proceeding; (2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but (3) that if he refused to answer he would be subject to removal from office.

Appellants answered the questions. No immunity was granted, as there is no immunity statute applicable in these circumstances. Over their objections, some of the answers given were used in subsequent prosecutions for conspiracy to obstruct the administration of the traffic laws. Appellants were convicted and their convictions were sustained over their protests that their statements were coerced, by reason of the fact that, if they refused to answer, they could lose their positions with the police department….

The choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice, like interrogation practices we reviewed in Miranda v. Arizona, is “likely to exert such pressure upon an individual as to disable him from making a free and rational choice.” We think the statements were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary under our prior decisions….

Perhaps there are union contract provisions that reflect the Garrity principle. But the rule of exclusion of evidence would be set by Garrity or perhaps by any Illinois legal rules that might be based on Garrity, not by the union contract itself.

UPDATE: I forgot to make this clear at first: I think that the judge probably didn’t rely on union rules, but instead relied on Garrity or cases or statutes that flow from it.