Fla. Stat. § 776.012. Use of force in defense of person

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

So the general rule is that deadly force may be used only to “imminent death or great bodily harm,” or “the imminent commission of a forcible felony.” A person may only use deadly force if he “reasonably believes” that the aforesaid factual conditions exist. These standards are the norm throughout the United States.

Eventually, a grand jury will issue a report based on its investigation. In the meantime, there are two competing narratives. In one narrative, Zimmerman followed Martin, attacked him, and then murdered him. Let’s call this the “M narrative.” In Zimmerman’s account, he followed Martin,  caught up with him, and then left; while he was leaving, Martin attacked him, knocked him to the ground, and began slamming his head into the  pavement. Let’s call this the “Z narrative.”

I am not making any judgment about which narrative is more plausible. The grand jury will do that. For now, it should be noted that neither the M narrative or the Z narrative has anything to do with a duty to retreat. The retreat issue would only be relevant if Martin were the aggressor, and Z had the opportunity to escape from Martin in complete safety. Then, and only then, would different state standards about retreat be relevant. Simply put, everyone who has claimed that Florida’s retreat rule affect the legal disposition of the controversy is either misinformed or mendacious.

The core Florida law on deadly force in self-defense leads to clear results. If M is true, then Zimmerman’s firing of the gun was a criminal homicide. If Z is true, the act was lawful self-defense. The results would be the same in every other state.

Under Florida law, there is another set of circumstances in which deadly force is permitted is:

(2) Under those circumstances permitted pursuant to  s. 776.013

The cross-references is to a statute involving self-defense in one’s home or automobile. Neither of these is relevant to the Martin-Zimmerman case.

Fla. Stat. § 776.013. Home protection; use of deadly force; presumption of fear of death or great bodily harm

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

The home/automobile law allows use of deadly force against intruders who unlawfully enter the victim’s home or occupied automobile. The law makes specific exceptions if the intruder has a legal right to be there, or is lawfully exercising child custody rights, or if the person in the home/automobile is engaged in illegal activity, or if the intruder is law enforcement officer who has identified himself as such.

Again, the home/automobile provisions have no relevance to Martin/Zimmerman case.

Next is the issue of retreat:

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

Again, this is irrelevant to the Martin/Zimmerman case. A duty to retreat, if it existed, would apply to a crime victim, who would be required to retreat than to use force in self-defense, if retreat were feasible. In the M version of the case, Zimmerman stalked and shot Martin; Martin never attacked Zimmerman. Accordingly, Zimmerman never had any lawful right of self-defense. Only Martin had violently and feloniously attacked Zimmerman would there be an issue (in any jurisdiction) as to whether Zimmerman had a duty to retreat. In the Z version of the case, there was such an attack, but it was impossible for Zimmerman to retreat. Thus, duty to retreat law has no bearing on the case.

Historically, American states have been split as to whether there is ever a duty to retreat, and under what circumstances. Richard Maxwell Brown’s excellent book No Duty to Retreat: Violence and Values in American History and Society (1994) details the strong trend in American courts in the late 19th and early 20th centuries against a duty of retreat. The U.S. Supreme Court said the same thing in Beard v. United States, 158 U.S. 550 (1895):

[Beard] was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack upon him with a deadly weapon, in such a way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury.

Beard involved a victim on his own land. The Court unanimously re-affirmed Beard‘s no-retreat rule in Alberty v. U.S., 162 U.S. 499 (1896), which involved a person in his own home. Allen v. United States, 164 U.S. 493, 502 (1896), involved a victim who was on someone else’s property; there, the Court upheld a jury instruction in favor of a duty to retreat.

Finally, in Brown v. United States, 256 U.S. 335 (1921), Justice Holmes writing for a unanimous Court that included Louis Brandeis (the greatest Progressive jurist), explained:

Rationally the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt. The law has grown, and even if historical mistakes have contributed to its growth it has tended in the direction of rules consistent with human nature. Many respectable writers agree that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not succeeded the bounds of lawful self defence. That has been the decision of this Court. [cite to Beard.] Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him Rowe v. United States, 164 U. S. 546. The law of Texas very strongly adopts these views as is shown by many cases, of which it is enough to cite two. Cooper v. State, 49 Tex. Cr. R. 28, 38, 89 S. W. 1068. Baltrip v. State, 30 Tex. App. 545, 549, 17 S. W. 1106.

It is true that in the case of Beard he was upon his own land (not in his house,) and in that of Rowe he was in the room of a hotel, but those facts, although mentioned by the Court, would not have bettered the defence by the old common law and were not appreciably more favorable than that the defendant here was at a place where he was called to be, in the discharge of his duty. [Defendant Brown was an employee at a federal navy yard, where Hermis attacked him with a  knife.]

The above cases all involved federal common law, applied to the federal Territories and to federal property. States, of course, are free to chart their own course. Judges can revise the common law, and legislatures can enact statutes which differ from the common law. Under the English common law of Blackstone, there was no duty to retreat in the home, and no duty to retreat when the use of force was necessary to commit a forcible felony, such as arson. Retreat was required, if practicable, in cases “of a sudden brawl or quarrel” outside the home. See also Hawkins, Pleas of the Crown, sects. 106-07; Bishop’s Criminal Law, sect. 850 (most influential American criminal law treatise of latter 19th century; person who is victim of murderous attack has no duty to retreat).

In sum, Florida’s non-retreat rule is not some 21st century novelty. It is consistent with a long tradition of American law, in which different states have had a variety of rules about when, if ever, retreat might be required.

Even among the most restrictive states, such as New York, retreat in safety is not required before using deadly force in the home; to prevent a burglary (if the person reasonably believes that the criminal would use force to thwart the person’s termination of the burglary) ; to prevent a robbery ; or to prevent a kidnapping, forcible rape, or other forcible criminal sexual attack.  Thus, whether you are in Lake Placid, New York, or Lake Placid, Florida, and someone attempts to rob you when you are walking down the street, you have no duty to retreat before using deadly force to thwart the robbery.

Back to the Florida statute, which then provides some additional legal standards for home/automobile defense:

 (4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(5) As used in this section, the term:

(a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

(b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

(c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

The next part of the Florida Code concerns “Use of force in defense of others.” Fla. Stat. § 776.031:

A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.

Deadly force is permitted only when “reasonably” believed “necessary to prevent the imminent commission of a forcible felony.” The no-retreat rule is the same as for self-defense.

We have now covered the entire relevant sections of Florida’s self-defense statutes. Not one word of them provides the slightest legal protection to Zimmerman, if the M version of the events is true. The grand jury will decide whether there is plausible evidence in support of the M theory.

Florida law provides some protections for persons who have lawfully used force against a criminal attack.

Fla. Stat. § 776.032. Immunity from criminal prosecution and civil action for justifiable use of force

(1) A person who uses force as permitted in  s. 776.012 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

So if a person used force lawfully in self-defense against a criminal attacker, then his actions are justified (not merely excused), and he may not be arrested, criminally prosecuted or sued. It seems obvious that persons who have obeyed the law should not be arrested or prosecuted. Nor should criminals or a criminal’s relatives be able to harass the victim by filing a civil suit.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

The Sanford police said this is why they did not arrest Zimmerman: they did not have probable cause to believe that he had broken the law. In fact, the statute does not change the law, but it apparently is effective at reminding law enforcement officers of the standard they are required to obey. Regarding arrests, the United States Constitution requires that “The right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the . . . persons . . . to be seized.” As judicially interpreted, the Fourth Amendment does not require a warrant for some arrests, but the probable cause requirement remains enforceable. The normal rule in American law is that a police officer must have “probable cause” in order to arrest someone.

Another protection:

(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

So if a lawful defender is sued, then the court will attorney’s fees and costs to the victim of the improper suit, who was, of course, also the crime victim.

Finally, Florida law guaranteeing self-defense rights express excludes anyone who “Initially provokes the use of force against himself or herself.” Fla. Stats. 776.041. As is typical in other states, the provoker can only regain self-defense rights  if:

(2)(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

The only way that this statute would be relevant would be if Zimmerman initially attacked Martin, and then withdrew. Zimmerman has made no such claim, nor does the M narrative.

In sum: there is not a shred of support for the claim that Florida law protects, or has protected Zimmerman, if he unlawfully attacked Martin. If Zimmerman’s story is true (Martin attacked him, putting him in imminent peril of grave bodily injury, with no opportunity to retreat), then Zimmerman’s self-defense claim would be valid under the laws of Florida, New York, or any other Anglo-American jurisdiction. The particular legal changes resulting from Florida’s “Stand Your Ground” and “Castle Doctrine” laws (deadly force in the home/automobile; no duty to retreat in public places; Fourth Amendment arrest standard affirmation; protection from civil suits) simply have nothing to do with whether Zimmerman’s actions were or were not lawful.

Naturally, including victims gives rise to various fears. Today I’ll discuss three such fears: vengefulness, inequality, and unprofessionalism. Each set of concerns is legitimate, but manageable if not overblown.

First, we tend to assume that victims thirst for revenge. Give victims power, one might think, and they will simply take it out of defendants’ hides. To this way of thinking, criminal justice is a zero-sum game, and making victims happier necessarily comes at the expense of defendants, tilting the playing field against them.

But contrary to what one might expect, victims are not reflexively punitive. Empirical studies find that participation by victims does not lead to harsher sentences. Thus, giving victims voices in the process need not produce harsher outcomes, particularly because plenty of safeguards would remain. A neutral judge or jury would have to authorize any conviction or punishment and would weigh the victim’s input against the defendant’s and all the other evidence. A prosecutor would still be able to override a victim’s vengeful, selfish, or otherwise unbalanced requests.

What victims care about is not so much the substantive outcome as whether they are treated fairly and respectfully along the way, including whether they are listened to and taken seriously. Keeping victims informed, letting them speak, and giving them their day in court makes them more satisfied. That is not a zero-sum game; both victims and defendants can benefit from being treated respectfully.

Of course, some victims will desire more punishment than defendants want; that is why judges and juries must sit in judgment. But a process that listens to and respects both sides will earn more legitimacy in everyone’s eyes, regardless of the substantive outcome. And procedures that encourage catharsis, apology, and forgiveness may help victims to release their anger and find closure without demanding the maximum sentences.

Second, heeding victims would seem to invite inequality. Some victims suffer more or are more vengeful than others, and some are more attractive or more articulate.

Though many philosophers deride it as moral luck, harm to victims is undeniably central to popular intuitions of justice. For instance, whether a victim nimbly dodges a knife thrust can make all the difference between a conviction for murder, mayhem, or just aggravated assault. Each defendant may have the same mental culpability but receive vastly different sentences based on the victim he chose to victimize.

Gauging the harm to a unique human being, not a faceless abstraction, requires evidence of how that particular victim suffered. A victim’s expressed feelings and wishes are powerful evidence of the psychological harm that he has suffered or from which he has recovered. And many people’s intuitions put significant weight on victims’ wishes; they implicitly recognize that victims own a share of the right to punish.

One may legitimately worry that judges and juries may favor attractive, white, young, female victims. But sentencing guidelines, rules of evidence, and cautionary jury instructions can limit discrimination. Moreover, despite decades of regulations, scholars still find sentence disparities based on the race, sex, and class of victims. Rich, powerful victims already find ways to influence prosecutors and make their voices heard; poorer victims need formal ways to participate to achieve an equal footing.

Finally, efforts to treat like cases alike, such as mandating charging and minimum sentences, often wind up treating unlike cases alike. That is the lesson of my analysis of prosecutorial power: rules meant to ensure substantive equality often become plea-bargaining chips that turn on insiders’ interests rather than blameworthiness or harm. Perhaps, then, it is worth relaxing our fruitless quest for perfect equality in favor of the other values of victim participation.

Indeed, perhaps local participation by victims and the public may be even better at promoting equality than top-down judicial rules have been. Local democracy might perhaps defuse the insider-outsider tension, instead of driving outsiders to jack up sentences while insiders covertly and inconsistently undercut them. Over the last decade, in areas such as racial profiling, capital punishment, and crack cocaine sentencing, legislatures and governors have pushed for more criminal justice equality where judges have failed. Voters care about equality. Populism, in short, need not mean racism.

Third, transferring power from prosecutors to victims would seem to slight the benefits of professional expertise. But critics of victims’ rights overlook prosecutors’ flaws. Prosecutors are far from perfect guardians of the public’s and defendants’ interests. They have plenty of self-interests of their own, which can make them too harsh in some cases and too lenient in others. The alternative to a victim’s check on prosecutors is effectively no check at all. Prosecutors can check victims’ excesses, but likewise we need victims to check prosecutors’ excesses.

At one extreme, lawyers can become cynical. Some of the commentators on these posts, like some of the lawyers whom I interviewed for the book, doubt that there is such a thing as justice or that criminal justice could have anything to do with justice. Others burn out, drained and beaten down by the volume of work.

Many others become jaded, dulled by time and the steady drumbeat of crime. They may have been drawn to the profession to do justice and serve the public, but over time the focus on case-processing statistics and the legal mindset dulls the freshness of their perspectives. They need to be reminded of how their constituents, the outsiders, view justice and how they need to be treated.

I’m a former federal prosecutor: I wanted to do justice, and I was proud to engage in public service. The bulk of the lawyers I practiced with, against, and in front of were good, honorable people. But a little bit of distance from practicing law has helped me to see what I and many other practicing lawyers gradually paid less attention to–the central role of moral justice and flesh-and-blood people. Insiders may come to see defendants and victims as statistics, but outsiders taking a fresh look see complex, flawed, real people.

G.K. Chesterton put it best: “[T]he horrible thing about all legal officials, even the best, . . . is not that they are wicked . . . , not that they are stupid . . . , it is simply that they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of justice; they only see our own workshop.” Juries existed to bring in a steady rotation of outsiders, whose fresh eyes could see the wounded victim and “the prisoner in the dock” in all their complexity before “the awful court of judgment.”

Ours is an age that worships professionalism and bureaucracy; we are disciples of Max Weber. Professionalism has its virtues, but we are sometimes blind to its vices and shortcomings. In the book, I reach back to an earlier American tradition, that of Alexis de Tocqueville and populist self-government.

Criminal justice should fundamentally be about justice, and justice is fundamentally about morality. Idealism should guide us even as practicality brings it down to earth. Only by forcing insiders and outsiders, lawyers and laymen to see through one another’s eyes and take one another seriously can we reap the benefits of both expertise and fresh perspectives.

It’s been a pleasure blogging here this week. Thank you for your attention.

Lawyers’ bottom-line, cost-benefit approach has brought many undoubted benefits, including efficient case processing and thus crime control. Those goods do indeed matter greatly to ordinary citizens. But criminal justice ought to serve more than this single goal to which it has been boiled down.

The machinery’s relentless pursuit of mechanistic efficiency has slighted the downsides: It disempowers victims, defendants, and the public. It cheapens justice into a marketable commodity, a fungible widget to be mass-produced. It eschews the rhetoric of moral judgment in favor of legalese and mathematical gobbledygook.

It also hides the workings of the system, leaving outsiders frustrated and mistrustful and insiders free to indulge their self-interests or idiosyncratic preferences. It exacerbates the cycle of pathological politics of crime legislation, helping to provoke draconian referenda in response and later dishonest subversion of those populist measures.

In addition, the machine neglects remorse, apology, forgiveness, healing of relationships, reintegration, and reentry. It creates a semi-permanent underclass of prisoners and ex-cons in exile. It hollows out large swaths of minority neighborhoods. And it deprives countless children of their fathers and women of their husbands and boyfriends, with little hope that these men will return to lives of lawful work and responsible fatherhood.

Whew! That’s a daunting list of problems. It is immensely difficult to reform a system as broken as our punishment factory. Skeptics can dismiss incremental reforms as cosmetic, like straightening deck chairs on the Titanic. More ambitious reforms get attacked from the other side as unrealistic given massive caseloads.

Still other critics assume, wrongly, that if the public supported any workable reforms, politicians would already have implemented them. But we must start where we can and not let pessimism paralyze us.

In the book, I suggest a range of possible solutions, including making prisoners work (even perhaps in the military) to repay their victims, families, and society and making it easier for them to find housing and jobs upon release. I propose abolishing the most dishonest forms of plea bargaining, particularly pleas in which defendants proclaim innocence or stay silent and those in which prosecutors downgrade the true charges. In today’s post, I’d like to focus on micro-level solutions to include victims more fully in individual cases.

The first step is to give victims better information about their cases. While most states have some victims’ rights law on the books, enforcement is uneven and many victims don’t receive notice. Dedicated officials, such as victim/witness coordinators, help to increase contact with victims and keep tabs on the progress of cases. Automatic email and telephone notices could keep them informed about upcoming court hearings.

Victims could also be allowed to speak at sentencing, instead of submitting perfunctory letters. They could also speak with, question, and respond to defendants and lawyers at trials and at plea and sentencing hearings.

The hardest questions involve what kind of voice victims should have over the course of the prosecution. The trick is to strike a middle path between letting victims hold the system hostage or making their participation hollow. The community’s shared sense of justice should control, but victims provide important information about the harms they have suffered. The public wants to hear what victims have to say and what they need in order to heal, but it should check that reaction with its own sense of justice.

First, prosecutors should provide timely notice of upcoming decisions, such as charges and plea offers. Second, they must affirmatively solicit victims’ views, in plenty of time to influence decisions. Third, prosecutors should have to articulate reasons for their decisions, much as judges do. For major decisions, they should do so in writing; for minor or routine ones, a checklist or oral statement could suffice.

Fifth, victims ought to have the time and opportunity to appeal major felony decisions to a prosecutor’s supervisor, even by email, phone, or a ten-minute conversation. If line prosecutors knew that victims could appeal to their supervisors, line prosecutors would listen more respectfully and be careful to justify any contrary decisions.

Finally, victims (as well as judges, fellow prosecutors and police, probation officers, and even defense lawyers and defendants) should have avenues to leave feedback on police and prosecutors’ performance. Even an eBay-style feedback loop would illuminate and check professionals’ decisions, and it could influence pay and promotions. Soliciting victims’ feedback would empower them and send the message that the system cares about their views. Corporations routinely survey customers and solicit feedback so they can continually improve their customer service; government agencies have been slow to do the same.

Of course, victim involvement works only where one can identify a victim. More than a third of arrests are for drug crimes, and one-ninth are for public-order offenses, such as weapons and driving-related offenses. But not all drug and public-order offenses are truly victimless: think of crack houses that blight neighborhoods or armed criminals who terrorize communities.

Where even indirect victims are absent, that very absence should weigh against aggressive enforcement. That would reshape drug enforcement away from racking up easy buys and busts toward the subset of crimes that indirectly harm neighborhoods. More of a focus on victim input would mean more focused enforcement of so-called victimless crimes and more emphasis on classic violent and property crimes.

So, that’s just a sampling of the book’s diagnosis and remedies for what ails American criminal justice. In my final post late today or tomorrow, I’ll respond to some objections, most notably fears of inequality, vengeful victims, and unprofessionalism. Each concern, I’ll suggest, is legitimate but manageable.

Today, the right to punish belongs exclusively to the state, not the victim. Crimes violate the state’s laws and its interest in maintaining public order and social cohesion. The state does not settle for restitution and fines, as private litigants do, but imprisons and even executes wrongdoers. It exacts its justice quickly and impersonally to lock up the dangerous criminal and to deter him and others. All that seems to matter is the bottom-line number of years in prison and, to an extent, accuracy in discerning guilt.

The state-centered model assumes that cold reason should dominate criminal-justice decisions and exclude human emotions. But the cool logic of state-monopolized justice, to the exclusion of victims, conflicts with many people’s moral intuitions.

Why should the right to punish belong exclusively to the state? Disputes aren’t simply impersonal red flags that alert the government to dangerous threats. They wrong both the state and the victims. Crime has a human face, and that face deserves standing and a say in the matter. The victim or his representative seems naturally to deserve at least a partial right to pay back the wrongdoer.

That is a big part of why victims’ rights laws have proven so popular (though, as the book explains, they haven’t lived up to their promise and have often been hijacked by tough-on-crime groups such as prison guards). Plus, an important function of punishment is to defeat crimes by vindicating and re-empowering victims.

Empirical evidence confirms the intuition that victims’ views matter. When surveyed about concrete punishment scenarios, many people give great weight to the victim’s attitude and wishes, particularly for crimes involving property or personal injury. A democracy ought to do more to incorporate this widespread intuition about justice.

Professionals look at conflicts as costly disputes to be negotiated away. But in a sense, conflicts are important opportunities for the victim, defendant, and community to express themselves, listen, and learn. The parties have suffered personally and belong at the center of the dispute. Thus, criminal law used to resemble private law, in which tort victims may prosecute, settle, or waive their shares of claims. But professionalization has stolen conflicts from the parties, not only disempowering them but also muting the lessons taught by public criminal verdicts.

The law could surrender its monopoly on criminal justice by once again making more room for the parties’ interests and voices. That doesn’t mean transferring the monopoly to victims; prosecutors need to keep a leading role to ensure accuracy, equality, and fairness. But victims and defendants deserve greater speaking roles, both in court and in mediation. Judges and juries must filter the partisans’ voices, empathizing yet reflecting and keeping critical distance, to keep retribution from collapsing into vengeance.

The exclusion of any victim’s right is especially puzzling when the victim wishes to forgive and show mercy. The state may cap punishments to check bloodthirsty vengeance, but it has much less reason to symmetrically limit mercy. As long as the punishment suffices to deter, incapacitate, and condemn the seriousness of the crime, the state’s interests are satisfied. Any margin of retribution above that should be the victim’s to forgive.

We need to take seriously the metaphor of a debt wrongdoers owe both to society and to victims. As the victim suffered the direct loss and holds a share of the wrongdoer’s debt, he may either insist on payment or forgive his share.

The moral of the story is that, even if the state runs the process, human emotion deserves a seat at the table. Emotion isn’t just a raw, blind, unreasonable passion. It is in part cognitive and evaluative, and it can be taught.

Emotions are an important part of what makes us human and how we understand and evaluate our fellow humans’ actions. Crime excites fear and anger, empathy and indignation, sorrow and forgiveneness. Victims need our solidarity; wrongdoers merit our anger but also empathy for their plight and reasons for breaking the law. But neutral arbiters must reflect and balance competing emotional claims to distill justice. Laymen care whether criminal justice is emotionally sensitive or tone-deaf, and taking these concerns into account should bolster the law’s legitimacy.

But, as the book discusses in detail, too often lawyers hijack emotional discourse to serve particular political ends. In that vein, I canvas three recent political movements (victims’ rights, restorative justice, and therapeutic jurisprudence) that react against the impersonality of the criminal justice machine. Each movement is unbalanced, but each has something to teach narrow, cold, state-centered criminal justice.

In my final installment tomorrow, I’ll offer a few suggestions for how criminal justice could do much more to include victims alongside prosecutors, to blend the perspectives of both insiders and outsiders, lawyers and laymen.

By insiders, I mean the lawyers and other professionals who run the machinery of criminal justice: the prosecutors, police, probation officers, judges, and even defense counsel. They are knowledgeable about investigations, crimes, and punishments. Back when jury trials were common, insiders were primarily adversaries, but now both sides’ lawyers collaborate in plea bargaining; cynics might even call it collusion.

Though prosecutors and police are nominally agents of the outsiders whom they supposedly represent — victims and the public — outsiders lack the knowledge and leverage to effectively oversee how insiders do their jobs. Insiders tend to mellow over time, and their practical concerns about huge dockets and fear of losing trials (risk aversion) make them especially pliable in plea bargaining. Finally, as lawyers, insiders are taught to weigh costs against benefits, focusing on neutral, amoral criteria such as speed and cost.

Outsiders see the system quite differently. They see little of police enforcement decisions, plea-bargaining conversations in courtroom hallways, or secret grand jury proceedings, and receive little notice or information even about proceedings that are public. Sensational media accounts and crime dramas lead the public to imagine that sentences are lighter than they actually are. In addition, victims and members of the public have few opportunities to participate and have their day in court, or even to see what’s going on. Finally, outsiders do not mellow or become jaded, and they view crime in moral terms, not economic ones.

The gulf between insiders and outsiders breeds a tug of war between the two sides. In America, the law on the books is often tenuously related to the law in action, because police and prosecutors have pervasive discretion in deciding which laws to enforce in which cases and how vigorously. In other words, criminal laws create not binding obligations, but a menu of options for insiders to exercise or not.

So, for instance, police choose not to make troublesome arrests, or prosecutors bargain down charges or sentences, to get rid of troublesome cases. For a long time, they viewed drunk driving, domestic abuse, and date-rape cases as not very serious and (in the latter two cases) hard to prove, so police would avoid making arrests and prosecutors would bargain the cases away to get rid of them. (Those are about the only crimes I can think of where popular outrage has been loud and sustained enough to bring about an enduring shift in arrest and prosecution practices.)

When the public sporadically gets angry about a criminal justice problem, perhaps because of media hype, it may clamor for new crimes or mandatory-minimum sentences. What the public doesn’t see, however, is that insiders’ procedural discretion usually undercuts these reforms, turning even so-called mandatory sentences into chips to be bargained away. If the public gets angry about plea bargaining, it may even try to limit prosecutors’ ability to plea bargain through ballot initiatives and referenda. But even then, prosecutors find ways around such laws.

Now, some readers probably aren’t too troubled by this. If you think lawyers know best and voters are benighted, you might be tempted to applaud how lawyers subvert democratic accountability and responsiveness in order to process cases efficiently.

But the costs are considerable. The tug of war wastes prison resources, unduly lengthening some sentences and shortening others based on defendants’ plea-bargaining behavior rather than what they deserve. It leaves insiders vast discretion to apply new laws selectively, opening the door to discrimination or arbitrariness. It leaves outsiders disempowered, and it thwarts democracy. In particular, it undermines trust in and the legitimacy of the criminal law, and it prevents the public from monitoring its agents and ensuring that they are following the will of the people.

Back when jury trials were common, citizens could oversee prosecutors and intervene carefully at the retail level as jurors. And when counties were smaller and criminal justice was more local, they had a better sense of local crime problems and priorities and so were better able to keep the police in check, neither too tough nor too aloof.

But now that jurisdictions are much larger and most citizens learn about criminal justice from television, outsiders can intervene only crudely. At best, they can paint with a very broad brush by voting and influencing legislatures. At worst, they must pass laws that read like bumper-sticker slogans, such as three-strikes laws and mandatory minimum sentences, because they have lost faith in insiders and lack subtler tools to limit leniency and ensure equality. What should have been a cooperative relationship has degenerated into a competitive one, as outsiders wield these sledgehammers and insiders feel they have to evade their crude blows.

At root, these difficulties stem from what economists call the principal-agent problem. Prosecutors and police are supposed to serve victims and the public interest, but those voices are so diffuse and powerless that there is really no identifiable client to constrain how the agents do their jobs. (The book offers a similar critique of the relationship between defendants and their lawyers.) In tomorrow’s blog post, I’ll propose a fairly radical shift in how to think about the stakes in criminal justice: loosening the state’s monopoly on criminal justice by once again giving victims a central role.

To be clear in response to some comments, I did not imply that we should go back to Salem witch trials, let alone medieval European trial by ordeal. Nor did I endorse flogging or rampant use of the death penalty, though actual executions were much less common than most people suppose. Nor did I say that we ought to get rid of all modern due process and lawyers and go back to 20-minute-long trials (though one can question how much better modern plea bargaining is in practice). My point was more modest: that the colonists saw justice done and had their day in court. In our Whiggish assumption that the past was irredeemably backward and all change is progress, we often overlook what we have lost in our quest for efficiency.

Today, I’d like to set forth some of the things that changed over the course of the nineteenth and twentieth centuries, transforming the lay-run morality play into a professionalized plea bargaining assembly line.

First, over the course of the nineteenth century, public prosecutors steadily gained control of American criminal justice at the expense of victims. Some colonies did have public prosecutors, but their role was occasional and limited. To give just one example, some public official was needed to prosecute homicides because, for obvious reasons, the victim could not. But there was nothing like a professional, state-dominated system of routinely detecting, charging, and prosecuting crime.

Prosecutors, of course, lack victims’ personal stake in the outcome. That is good as a way to check private vengeance, but it also opens the door to what economists call agency costs: the distinctive self-interests and incentives that influence public servants. Salaried prosecutors usually have little reason to invest extra work in any one case, particularly if they are part-time employees who can earn more by getting back to their private clients. Prosecutors are also a politically ambitious bunch who may want to burnish their reputations by winning a few high-profile convictions at trial.

In addition, prosecutors may care about keeping their conviction rates up, trading severity of sentences for certainty in the course of plea bargaining (see below). If they care about racking up conviction statistics, and lack personal stakes in any case, they may lean toward prosecuting easier-to-prove victimless crimes. In a victim-run system, such crimes would be prosecuted only where they at least indirectly affected some victim.

Second, defense lawyers gradually came to stand in for defendants. Back in the eighteenth century, victim and defendant would tell their stories at trial almost in a shouting match, letting juries hear both sides first-hand.

As defense lawyers increasingly entered the picture, however, they advised their clients to let them do the talking. Instead of offering excuses or pleading for mercy, defendants increasingly stood mute. That transformed the trial from a morality play between the protagonist and antagonist into a courtroom duel between professional adversaries. And because those adversaries were professionally trained and repeat players, they developed intricate rules of evidence and procedure, further distracting the trial’s focus from who did what and who deserved what.

But third, those courtroom duels became increasingly rare. The sprouting of technical rules made trials much longer, from minutes to hours and then days. (Today, a good number take weeks or even months.)

During the nineteenth century, courts became increasingly busy with civil (tort) lawsuits over streetcar and railroad accidents, factory injuries, and the like. So prosecutors, defense counsel, and judges alike came to share an interest in clearing their dockets through speedy plea bargaining. And since they were all repeat players, they could develop going rates and market prices for recurring crimes.

From the point of view of these insiders, plea bargaining made perfect sense. Lawyers who have seen a lot of trials can predict with some accuracy whether a jury will convict and what sentence a judge will likely impose.

In exchange for offering a charge or sentencing discount, prosecutors free up time and resources to pursue more cases. Defense lawyers cap their clients’ sentence exposure, receive discounts, and get cases over with quickly. And trial judges clear their dockets and avoid the possibility of embarrassing reversals on appeal. Just as private bargains make both sides better off, because each side gets something it values more, so plea bargaining makes all the participants feel better off.

If plea bargaining makes everyone happier and is so efficient, why then does it remain controversial today? That depends on whether one looks at it primarily as a matter of public law or of private (contract) law. The lawyers who negotiate the bargain may all be better off; they efficiently dispose of caseloads and trade off severity of sentences for certainty of more sentences. The lawyers see the process primarily as a contract, a private deal that happens to serve their professional and personal interests as well as their understanding of the public interest.

But that perspective leaves out the public, the laymen to whom criminal justice is not a private bargain but a public morality play. From the public’s point of view, plea bargaining is opaque, it cheapens justice by commodifying it, and it is often dishonest (as when, for example, a charge bargain reduces attempted murder or rape to aggravated assault). Victims may feel sold out and excluded, and defendants may feel they have gotten away with something.

These wildly divergent perspectives on plea bargaining track what I call the great gulf that separates criminal justice insiders from outsiders. The contours of that gulf, and the ways that it harms criminal justice, will be the topic of my next post tomorrow.

1) how America moved from a populist system of public jury trials and punishments to a hidden plea bargaining assembly line run by lawyers;

2) what we have lost in our quest to process ever more cases efficiently; and

3) how we could swing the pendulum part-way back toward greater public involvement and confidence within a lawyer-run system.

I can’t cover the entire book in a week and won’t try to excerpt it. But I hope to give you a sense of how far modern American criminal justice has drifted from its roots and the hidden costs of efficiently boosting the quantity of cases prosecuted at the expense of the quality of how we do it.

Let me start today and tomorrow by canvassing how, without much thought, we have drifted over the past four centuries from the colonial morality play to the modern criminal justice machine. There’s no question that professionalization has brought tangible benefits, especially the ability to handle staggering caseloads. What I want you to see, however, is the price we have paid to purchase more and more efficiency.

In the seventeenth and eighteenth centuries, of course, most people lived in small towns and villages. Communities were very cohesive, as everyone knew everyone else and word of mouth traveled quickly. They were very often ethnically and religiously homogeneous, with a shared sense of what was and always had been wrong. The downside, of course, is that social and legal pressures to conform could be stifling.

But there were upsides too. Because informal social pressure did so much work in preventing and responding to lawbreaking, there was less need for professional state intervention and coercion. Because the moral consensus emphasized that everyone was weak and fallen, there was more understanding and brotherly love to moderate criminal punishments.

And because morals crimes cut across the social spectrum, criminal justice didn’t create a discrete criminal underclass; everyone could occasionally stumble. People paid their dues, were forgiven, and could reenter society with a clean slate and rise to high office and social station. There was no gulf between the governors and the governed, the law-abiding and the lawless.

It’s also extremely significant that colonial justice was the business of amateurs: laymen, not lawyers. Ordinary white men took turns serving as night watchmen and constables, and when victims shouted out a hue and cry all the neighbors were supposed to rise up to help catch the perpetrator.

Criminal cases were decided by local juries, who applied their common-sense notions of right and wrong to decide who was factually guilty and morally blameworthy. At first there were no American law books or law schools, and very few lawyers overall. Thus, even the judges had little training, and many if not most cases were prosecuted by victims pro se (without lawyers) and defended by defendants pro se, each telling his side of the story.

The lack of professionalization certainly had its downsides; for example, it left amateur night watchmen poorly equipped to deal with dangerous professional criminals. But it also meant that trials were straightforward contests about who had done what and who deserved what punishment.

There were no lawyers to generate and argue over technical rules of evidence and procedure, nor to draw out pretrial motions and post-trial appeals. The side issues that today distract from factual and moral guilt, such as Miranda warnings, the exclusionary rule, and the intricate hearsay rules, were far off in the future.

Before prosecutors took over, victims literally had their day in court; and before defense counsel took over, defendants could not remain mute and simultaneously challenge the prosecution’s case. Criminal trials publicly aired each side’s story, both in deciding factual guilt and in weighing the punishment deserved. It was a matter of common sense, not legal technicality.

So, with apologies to professional legal historians for oversimplifying, that’s a rough snapshot of what colonial American criminal justice looked like. Tomorrow I’ll explain the dramatic changes it underwent over the nineteenth and twentieth centuries.

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.

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.

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.

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]

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.

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.

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.

A defendant’s Sixth Amendment rights to confront witnesses and present a defense are generally subject to rules of privilege and to other evidentiary restrictions. A defendant generally could not, for example, insist on presenting testimony about a co-defendant’s privileged communications with that co-defendant’s attorney. Nor could he expect to elicit declarations in violation of the rules against hearsay. But under some extreme circumstances, rules of evidence must be subordinated to a defendant’s due process right to a fair trial. The lead case is Chambers v. Mississippi, 410 U.S. 284 (1973). There the Supreme Court ordered a new trial because a confluence of state evidence rules had wrongly prevented the defendant from eliciting reliable proof that someone else committed the crime with which the defendant was charged.

Applying the Chambers rationale, any number of state and federal decisions have concluded that the interests of the press protected by constitutional and statutory privileges may have to give way when weighed against a criminal defendant’s claim that protected information is vital to his defense. See, e.g., United States v. Criden, 633 F.2d 346 (3rd Cir1980); People v. Le Grand, 67 A.D.2d 446 (2d Dep’t 1979) (Titone, J.); People v. Nasser, 15 Misc.3d 499 (Sup Ct Westchester Co 2007) (prior inconsistent statements); Matter of Sullivan v. Hurley, 167 Misc.2d 534 (Sup Ct Queens Co 1995); People v. Troiano, 127 Misc.2d 738, 741-42 (Co Ct Suffolk Co 1985). In a typical case, the balancing process will yield a result upholding the press privilege. See, e.g., Matter of Perito v. Finklestein, 51 AD3d 674 (2d Dep’t 2008); People v. Hendrix, 12 Misc.3d 447 (Sup Ct Kings Co 2006); People v. Troiano; People v. Iannaccone, 112 Misc.2d 1057 (Sup Ct N.Y. Co 1982); People v. Marahan, 81 Misc.2d 637 (Sup Ct Kings Co 1975). But on occasion, the facts result in a conclusion that the interests of the defendant outweigh those of the press. See, e.g., People v. Nasser; Matter of Sullivan v. Hurley.

The rule may be stated this way: where a criminal defendant seeks press information that (1) is highly material, (2) is critical to the defendant’s claim, and (3) is not otherwise available, then the press privilege must give way in the face of the Sixth Amendment. And that is true even if the information is confidential….

The facts here present a textbook example of circumstances requiring that the press privilege be overridden. The identity of the individual (or individuals) who said “shoot the cop” is highly material to whether defendant was an accomplice in the attack on the police officer. Defendant’s claim that someone else made the statement is critical to his defense. And there is no available source for crucial information other than the Daily News. Defendant seeks to impeach expected police testimony that he uttered the words at issue. If one of the officers who was at the scene of the crime attributed the statement to Rivera’s mother in an interview, and thus is subject to impeachment with a prior inconsistent statement, only a representative of the Daily News can so indicate.

Other factors plainly show that a proper balancing of interests tilts toward defendant’s position. Most important is that, as noted, the People’s claim that defendant was an accomplice in serious crimes is almost completely dependent on the statement at issue. Next, any required disclosure will be narrow: only the source of a statement is at issue, not substantive information.

Relatedly, if there will be disclosure of a confidential source, that disclosure will be only of someone who will otherwise be testifying, and who will have no legitimate interest in hiding prior inconsistent statements. This is certainly not a case in which disclosure will put an otherwise anonymous individual at risk or in which a whistle-blower has made a disclosure in the public interest. There is not even a reason to think that the source would face police discipline for his disclosure. The court presumes that stones will be cast at the informant only by any supervisors who might themselves be without sin.

Finally, the court’s relief will be narrow. Counsel for the Daily News need disclose to the court, in camera, only whether the confidential source is one of the two officers present at the crime scene and, if so, which of the two he is. The court will in turn disclose that information only if the source testifies, and denies that he made the statement published in the Daily News. Of course, if the named source denies making the statement, an appropriate witness from the Daily News will be obliged to testify on the defense case….

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.

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.”

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.

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.

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.

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 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.

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.

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.

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.]

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.

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.

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.

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.