Wanda: What would an intellectual do?  What would… Plato do?

Otto: Apol-

Wanda: Pardon me?

Otto: Apollgzz.

Wanda: What?

Otto: Apologize!

Well, no.  He probably wouldn’t.  Not Plato.

And certainly not in the case of Troy Davis, whose final clemency request was denied this morning, and who now faces execution tomorrow evening for the killing of a police officer in 1989.  He was convicted at trial 20 years ago, but since then the reliability of that verdict has been called into serious question.  Seven of the nine major witnesses recanted their testimony, many claiming that the police pressured them to give false eyewitness accounts.  No forensic evidence ever tied Davis to the crime, the murder weapon was never found.  In the intervening years, ten new people have come forward to point the finger at another individual known to have been present at the scene.

So it’s possible that Troy Davis might not have shot the officer.  It’s possible that he might have.  Twenty years of second-guessing and changing stories make it uncertain.  But what is certain is that he was convicted, and that the conviction stands.

Should we be troubled by this?

We started pondering this after our kids’ bedtime story the other night.  We were reading to the lads from the Dialogues of Plato [what, you got a problem with that? Shut up, these are not your children.], specifically the Crito.  That’s the one where Socrates has been condemned to death, and his friend Crito shows up to talk him into escaping.  Boiled down to its essence, the Crito runs something like this:

Crito: Wake up, Socrates, we’re busting you outta here!

Socrates: What are you, an idiot?  You can’t do that.

Crito: No worries.  All the bribes are arranged, the travel’s all taken care of, and you have your choice of local city-states all ready to welcome you with open arms.  Let’s blow this Athens joint and get back to freedom and philosophy!

Socrates: Use your head.  Living is not what’s important.  Living a good life — one that is just and honorable — is what’s important.

Crito: Yeah, but…

Socrates: And it’s not just or honorable to try to escape, because that would violate the will of the state that condemned me.

Crito: Aha, but it was unjust for the state to condemn you.

Socrates: Don’t you “aha” me.  The state provided for my entire existence, educated and protected me, and by living here my whole life I’ve entered into an unspoken contract to abide by the state’s law.

Crito: Yeah, but…

Socrates: Shut up.  Justice requires the rule of law.  No man is above the law.  If you start making exceptions for famous philosophers, or for people who can afford bribes, then there is no more rule of law.  Justice disappears, society crumbles, and everyone suffers.

Crito: Yeah, but…

Socrates: So if I break out of here in violation of the state’s law, then I’ll be the bad guy.  I’ll be the enemy of good government.  When I arrive at Thebes or Thessaly, I will come as an enemy of their good government, too.

Crito: Yeah, but…

Socrates: Think of it this way — I’m taking one for the team.  Yes, I’m suffering from an individual injustice.  But that’s the price you pay sometimes for the general justice of society.  If I didn’t pay that price, we’d all suffer.

Crito: Team!  Team!  Team!

Socrates: That’s the spirit.  Now can I go back to sleep, please?

Okay, so after reading this to the kids (and succeeding in our goal of getting them to go the **** to sleep, already), we started wondering if Plato was right about all this.  After all, individual injustice is still, you know, unjust and all.  Wouldn’t it be proper to break the rules to ensure individual justice?  And that got us thinking about Troy Davis.

The rules are keeping him on death row.  The rules will, absent some remarkable and unforeseen intervention, result in his death tomorrow night.  But we’ve got 20 years of hindsight giving us real doubts that he’s guilty.  The rules also say we don’t punish someone unless their guilt is proven beyond a reasonable doubt, and there’s reasonable doubt all over the place now.  It would be an injustice to execute someone whose guilt is so ridden with doubt.  Doesn’t the enormity of that individual injustice warrant breaking the rules to prevent it?

Plato (speaking through Socrates) would clearly say no.  And our system, our jurisprudence, says no.  Because when push comes to shove, the goal is not individual justice.  The purpose has never been individual justice.  It’s always been justice in general, not in particular.

-=-=-=-=-

Of course, our system tries for individual justice.  Defendants are judged on a case-by-case basis.  It’s terribly inefficient, but that’s how we do it.  We don’t just round up the usual suspects or behead every tenth person.  We treasure the right of the individual to be free from arbitrary and abusive governmental action.  That’s all the Declaration of Independence, the Constitution and the Bill of Rights are saying.  The government can hurt you real bad, and so we make the government obey the rules before it does so, to prevent it from hurting you just because it can.  So we decide each case individually, with rules of evidence and constitutional rights and statutory obligations all designed to make sure the might of the state is coming down on you justly.

Though we strive for individual justice, it’s recognized that mistakes get made.  Guilty people escape punishment, and innocent people get convicted.  We try to minimize that, but it happens.  There are rules in place for the undoing of wrongful convictions.  They’re not perfect, but they are the rules.

But if all the rules were followed, and you’re still wrongly convicted?  Well, at this point your interest in individual justice gets trumped by the goal of general justice.

“Finality” is a big concept here.  At some point, everyone has to move on.  Turn the page, close the book, it’s over.  The system is inefficient enough as it is, without allowing people to revisit each case over and over again until they get the result they like.  Society can’t be expected to bear the burden of retrial after retrial — new cases would never get tried, justice would be denied, because we’d be too busy going over the same old cases.

That’s all our criminal justice system really does:  It closes the book so everyone — accused, victims, witnesses, authorities — can get on with their lives.  The jury decides on an official version of the facts, based on what the government could prove rather than on what really happened.  Nobody expects this official version of the facts to be the whole truth.  It’s just something the system can work with, apply the pertinent laws to, and issue the appropriate punishment or dismissal — so everyone can get on with their lives.

In Troy Davis’ case, the official version of the facts is that he killed that police officer in 1989.  It may or may not be the truth — nobody knows but him — but that’s not what’s important.  What’s important is that the government was able to prove, beyond a reasonable doubt, that he did do it.  Whether they could prove it again today is not what the system and its rules are looking at any more.

He may be taking one for the team, then.  Being killed by the rules of the society in which he lives, which are designed to ensure general justice.  If the rules were to be broken for him, then they could be broken for the next guy, and we’d all suffer.

That’s what our jurisprudence says.  That’s what Plato would say.

-=-=-=-=-

And they’d be wrong.

Because one thing that our jurisprudence and Plato routinely ignore is the simple fact that perception is everything.

If the system is perceived to operate in a just fashion — if the people pretty much see it as protecting the rights of the individual and in general getting things right when deciding guilt and innocence — then the system works.  Crime is deterred by the assurance that it is punished accurately.  The laws are generally respected and obeyed because they are seen to be just and to be justly applied.  Society runs smoothly, and the law is doing its job.

But if the system comes to be perceived as unjust — even if in reality it’s as fair as could be — then society falls apart.  If the laws are seen as someone else’s laws, unfairly applied to this community, then the people of that community will lose respect for the laws and be more likely to break them.  If the laws are seen as disproportionately applied to some people as opposed to others, then they are no longer seen as just.  If the system comes to be seen as arbitrary, uncaring and cruel, then the law fails in its purpose.  Fear, not one’s own sense of right and wrong, becomes the primary reason to comply with the law.  That way lies social upheaval, riot and revolution.

In a world like ours, where the rare injustice is what makes the headlines and gets people talking, the risk is that the one-off will come to be seen as the norm.  If the occasional injustice comes more and more to be seen as the norm, rather than the sad exception, then everyone suffers.

The goal of general justice would die, because the perception of individual injustice killed it.

-=-=-=-=-

Socrates didn’t want to be the exception who broke the rules to achieve individual justice, because that would have corrupted and undermined the stability of his society.  But in today’s world, making exceptions and breaking the rules, in order to preserve a general perception that our system is a just one, is probably something worth considering.

Let this be a lesson to any young appellate lawyers who might be reading this:  Focus on the result, not on the argument.

We’re wading through the various slip opinions and decisions that came down during March and April while we were on trial, and the Supreme Court decision in Pepper v. United States just floored us.  In a nutshell, Pepper got a huge downward departure at sentencing, for providing substantial assistance, getting 24 months plus five years of supervised release.  After Pepper had served his time and was now out on supervised release, the Eighth Circuit said his sentence was improper, and remanded for new sentencing.  The original departure was about 75% off the guideline.  At resentencing, the judge took 40% off, but then dropped it down to 24 months again based on extensive evidence that Pepper had gotten his life back on track in major ways.  The government appealed again.

On the second appeal, the Eighth Circuit reversed again, saying that post-sentencing facts could not be considered in resentencing.  Only facts known at the time of the original sentence could be applied.  After a Supreme Court sojourn on Gall issues, the Circuit remanded for re-resentencing before a new judge.  At this new resentencing, the new judge gave him only 20% off, or 65 months plus 12 months of supervised release.

Pepper appealed, of course, trying to get that original 40% departure.  So it went to the Supreme Court again.

The Supremes held, quite correctly, that of course post-sentencing facts may be considered at a resentencing.  It is absurd to argue otherwise.  The prosecution would be allowed to present evidence of subsequent failings by the defendant, so why shouldn’t the defendant be allowed to present evidence of his rehabilitation?

So far, so good.  But did that mean that Pepper was entitled to that original 40% reduction?  No.  Because “in his merits briefs to this Court, Pepper does not challenge the scope or validity of the Court of Appeals’ mandate ordering de novo resentencing, and thus has abandoned any argument that the mandate itself restricted the District Court from imposing a different substantial assistance departure.”  And the “law of the case” doctrine doesn’t apply in a de novo proceeding when the entire sentence had been set aside, which is what happened here.

This is such a forehead-smacking moment.

The Supremes are all but saying that Pepper should have said the Eighth Circuit didn’t have the authority to set aside the entire sentence and order a de novo resentencing.  Had the argument been made, the Court might have held that the Circuit could only have remanded for resentencing applying specific rules, but couldn’t order a complete do-over in front of a new judge.

But Pepper didn’t ask for that.

So Pepper didn’t get it.

Instead, all he gets now is a re-resentencing that is permitted to take into account his post-sentencing rehabilitation.  Which may or may not get him the lighter sentence he originally sought.  If appellate counsel had kept their eyes on the goal of canceling the Circuit’s de novo order, they would have argued for it.  And they might have gotten it.  Instead, they focused on making a “law of the case” argument that, while clever, made little sense if the de novo thing was still there.

Ergh.

(PS — The concurring opinions are worthwhile reading, as they lay out some of the ongoing problems in the post-Booker world.  Thomas’s dissent, however, goes too far.  He would abandon the individual justice of sentencing where judges have discretion, and would return to the one-size-fits-all injustice of the Guidelines as Mandates.  Thank goodness he’s a minority of one in this case.)

A year and eight days ago, the Supreme Court took the unusual step of granting an “original writ,” and handed down a novel decision directing a federal court to revisit the murder conviction of Troy Anthony Davis by allowing Davis to put on evidence of actual innocence.  (See our original post on the decision here.)  Davis was convicted after trial of shooting a police officer to death in 1989.  He always claimed he was there, but didn’t shoot anyone.  Several witnesses said otherwise, and the jury found him guilty.  After some of the witnesses recanted, however, and evidence was discovered that indicated that the prosecution’s star witness was the real shooter, the issue of actual innocence was put into play.  With some serious debate among the Justices, the Supreme Court sent it back specifically for the district court to determine whether there was evidence not available at the trial would “clearly establish” his innocence.

Yesterday, the federal court finished hearing the evidence of actual innocence, and found nothing worth reversing the conviction.  “Mr. Davis vastly overstates the value of his evidence of innocence,” the court found.  ”Some of the evidence is not credible and would be disregarded by a reasonable juror. … Other evidence that Mr. Davis brought forward is too general to provide anything more than smoke and mirrors.”  You can read the CNN story here, and the decision itself here (part 1) and here (part 2).

“This court concludes that executing an innocent person would violate the Eighth Amendment (barring cruel and unusual punishment) of the U.S. Constitution,” ruled U.S. District Judge William T. Moore Jr.  “However, Mr. Davis is not innocent.”  Although the state’s case ”may not be ironclad, most reasonable jurors would again vote to convict Mr. Davis of officer MacPhail’s murder.”  Repeating a phrase, it went on “ultimately, while Mr. Davis’ new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors,” Moore ruled. “The vast majority of the evidence at trial remains intact, and the new evidence is largely not credible or lacking in probative value.”

We’d be surprised if there wasn’t yet another appeal.  We’ll save you our rant on why this process is precisely why capital punishment doesn’t work.  If you’re interested, you can read it here.

The police need a warrant to search your home.  Except when they don’t.  The warrant requirement of the Fourth Amendment is there to protect your privacy, and sorry, but sometimes your privacy isn’t the most important thing at the moment.

One exception to the warrant requirement is the Emergency Exception.  In a nutshell, it says the police are allowed to go into your home without a warrant when there is good reason to believe that someone inside is seriously hurt, or in danger, and needs their assistance right away.

Different states define the rule in different ways.  In New York, the rule was set in 1976 in the Mitchell case.  Mitchell has two objective conditions, and one subjective condition.  If all three are met, then the police are allowed to go in without a warrant.

Objectively, the circumstances have to be such that a reasonably prudent officer would have thought there was an emergency at the time.  Objectively, the officers on the scene had to have probable cause to believe that there was an emergency inside the house.

Subjectively, the officers had to actually be going inside to help.  They couldn’t be using the emergency as a pretext to really look for drugs, for example.

So far, so good.  Sort of.

One problem is that there is no requirement here that the police actually believe there is an emergency.  There is no subjective requirement that the police on the scene be aware of the circumstances that would lead a reasonable person to think there was an emergency.  There is no subjective requirement that the police on the scene actually think there’s an emergency.

That’s not a huge problem under the Mitchell rule, because the no-pretext prong sort of implies that the police need to subjectively believe there’s an emergency.

But what happens if you take away that no-pretext prong?  You get an absurd rule.  Police who did not themselves believe there was any emergency could still go in without a warrant — and hope that some clever prosecutor down the road can come up with a scenario where an objective cop, aware of all the circumstances that the police themselves might not have been aware of, might have thought there was an emergency.  And if you think no New York police officer would break down your door in the hopes that it can get justified down the line (if your case even gets that far)… well, the word “naive” springs to mind.

Well, guess what?  Back in 2006, in its Brigham City decision, the U.S. Supreme Court specifically rejected the no-pretext prong of the Mitchell rule.  The Court was being true to its 15-year trend of rejecting subjective rules in federal Fourth Amendment law.  The Supreme Court line of cases does not care whether the police had some pretext or ulterior motive.  So long as there was some legitimate basis for the police conduct, they don’t really care what the police themselves were thinking.

But New York hasn’t had to deal with the issue though.  Not, that is, until a case we argued earlier this year.  

-=-=-=-=-

This January, we found ourselves before the Second Department one month after the Supreme Court had reaffirmed its Brigham City reasoning in an Emergency Exception case, Michigan v. Fisher, decided last December. 

In an unusually lengthy argument — the panel simply disregarded time limits, and let both sides argue for well over an hour — we found ourselves being asked by the panel what the new New York rule ought to be.  At first, we tried to suggest that no new rule was needed here, and anyway that was a job for the Appellate Division.  On seeing some raised eyebrows, however, we quickly gave the panel our thoughts.

It’s pretty straightforward, if you ask us.  The police who are entering the home can’t be protected by the Emergency Exception unless they themselves thought there was an emergency.  Based on the circumstances actually known to them at the time, they had to have honestly believed that someone inside the home was in dire need of their assistance. 

So we’d have a subjective test that does not have anything to do with pretext:

1) The police must subjectively believe that there is an emergency inside the premises.

2) That belief must be objectively reasonable, based on the facts known to the police at the time.

That’s all that’s really needed.  And that’s essentially what we argued.

And yet…

It is now the middle of July, and still no decision.  Just for context, most appeals before the Second Department have an opinion within weeks.  And even the most complex cases we’re aware of there still have had an opinion within a couple of months.  We’re at six months and counting…

-=-=-=-=-

When a decision is this long in coming from the Second Department, you know they’re wrestling with something.  Maybe it’s the facts of the case.

The facts are actually kind of neat.  Our client was in the hallway of the apartment building where he was staying.  In front of his door, before he’d been able to open it and go inside, he was stabbed in the neck by an assailant.  The assailant ran downstairs, and our client ran upstairs to get help.  Police came and found our client a couple of floors up, and he gave them a good description.  Officers quickly arrested the assailant at a nearby subway platform, found him with a backpack full of weapons, and took him back to be identified.  Our client was in an ambulance at this time, and positively ID’ed his attacker from inside the ambulance.  The attacker went  to jail, and our client went to the hospital.

Once everything was over, the police hung around.  They wanted to go inside the apartment where our client had been staying.  They sent the super to get the keys, and waited several minutes till he came back and opened the door for them.  There was some blood spatter on the door, but the cops didn’t have any reason to think that anyone was inside.  Inside they found stuff and left to get a search warrant.  They told the warrant court that they’d followed a blood trail directly from our client to the apartment and went right in, which wasn’t what had happened at all.

At the suppression hearing, the judge simply could not credit the police testimony.  It was so obvious to everyone that they were making stuff up — poorly — that the hearing was almost a farce.  To make matters even more farcical, the prosecutor’s theory of the case kept changing.  They brought in another prosecutor to argue the law stuff, who came up with yet another theory of the case.  The suppression judge didn’t buy any of it, and threw the evidence out.  The People appealed, and that’s how we found ourselves arguing for a new Emergency doctrine for New York.

On second thought, it’s probably not the facts.  The court has to be struggling with crafting a new law that will withstand appeal.  Because it’s a sure thing that, whoever wins this one, the other side is going to take it to the Court of Appeals.

So should the law be that the cops don’t necessarily need to subjectively believe there’s an emergency, so long as some objective person with full knowledge would have believed there was one (the People’s position)?  Or should the cops need a subjective belief that is also objectively reasonable (our position)?  Or should the law be something else entirely?

What do you think?

In the early days of the War on Terrorism, the Bush administration wanted to know what interrogation techniques were legal.  So it asked the DOJ’s Office of Legal Counsel for a memo on what could and could not be done to prisoners.  Staff lawyer John Yoo was tasked with doing the research and writing.  He did his research, wrote his memo, and that was that.

Well, no.  That was not that.  Some people didn’t agree with his legal reasoning.  More people (most of whom never even read the memo) shrilly lambasted it as a “war crime.”  We’re not particular fans of the memo ourselves (see our parody of it here), but we think it’s beyond stupid to call it a war crime, or even the slightest bit of misconduct.  He did what any lawyer in that situation is supposed to do: he analyzed existing law, and gave his opinion of what the law said.  The fact that other people disagree, even disagree strongly, doesn’t mean he did anything wrong.  The fact that his conclusions don’t comport with other people’s policies or principles still doesn’t mean he did anything wrong.  Even if he was wrong, that doesn’t mean he did anything wrong.

But now the 9th Circuit is struggling with the issue of whether Mr. Yoo can actually be sued for having written that memo.  Again, we’re no fans of the memo, but how he could possibly be sued for having given fair legal advice is beyond us.  Allowing this case to go forward, as we’ll discuss in a minute, would have enormously bad consequences for the government and the military.

-=-=-=-=-

The case was brough by Jose Padilla, a.k.a. Abdullah al-Muhajir, who was arrested in 2002 for plotting a radioactive “dirty bomb” attack.  Padilla was in military custody for about four years, during which time he claims to have been subjected to sleep deprivation, stress positions, extended periods of light and dark, and other interrogation techniques.  Padilla filed a lawsuit last year against John Yoo, claiming that Yoo’s memos “set in motion a series of events that resulted in the deprivation of Padilla’s constitutional rights.”  Almost exactly a year ago, the district court judge in San Francisco denied the motion to throw out the case.  Judge Jeffrey White said that “government lawyers are responsible for the foreseeable consequences of their conduct,” and that Yoo exceeded the normal role of a government attorney, in that he wrote both the Administration’s interrogation policies and the legal opinions justifying them.

Yoo appealed that decision, arguing that not only is there immunity here, but letting the suit go forward would interfere with the President’s war powers.  Liberals take note: the Obama administration is siding with Yoo.

Padilla’s argument to the 9th Circuit is that someone has to be held accountable for what happened to him.

Oral arguments were yesterday (listen here).  There’s a nice writeup on them over at Law.com.  Of the three-judge panel, Judge Raymond Fisher seemed clearly to be on Padilla’s side.  Fisher held that Yoo wasn’t merely acting as a lawyer, but was actually involved in setting administration policy.  Fisher also said that Hamdi v. Rumsfeld means the government doesn’t have total immunity here – it “doesn’t have a blank check, and that’s what we are wrestling with.”  (Where Fisher gets that from, we don’t know.  Hamdi only says that the government can’t hold a U.S. citizen indefinitely without some judicial review.)

Siding with Yoo and the government was Judge Pamela Rymer, who questioned whether the courts could even establish standards for “imposing liability on a non-policymaking lawyer.”  She said this case was like the Maher Arar case (for which the Supreme Court denied cert. yesterday), which dismissed a lawsuit against U.S. government officials for causing a man to be tortured.

The third judge, Rebecca Pallmeyer, didn’t really signal which way she was leaning.  Pallmeyer isn’t an appellate judge, she’s with the Northern District of Illinois, sitting here by designation.  She’s a Clinton appointee, and former administrative law judge for the Illinois Human Rights Commission.  That might indicate an innate leaning in favor of Padilla here, but really that’s the merest speculation.

-=-=-=-=-

We don’t see how Yoo can be sued here.  But let’s say the case does go forward.  Even then, we still don’t see how Padilla has a valid claim.  Sleep deprivation, stress positions, light/dark confusion — these are all long-standing interrogation techniques that have been used for decades.  They do not cause physical injury, though stress positions can be extremely uncomfortable.  Sleep deprivation and light/dark confusion are fantastic non-violent painless methods for breaking down an individual’s resistance to questioning. 

The whole point is to overcome someone’s free will, and get them to give you information they don’t want to reveal.  We don’t allow that for criminal prosecution.  The Fifth Amendment is specifically designed to ensure that people aren’t forced to convict themselves out of their own mouths against their will.  But criminal penalties and national security are entirely different.  Unlike criminal cases, in national security situations we want to overcome the individual’s free will.  If that can be done without causing serious physical injury, then great.

And the constitutional rights at issue only apply in the criminal sphere.  They don’t apply to enemy combatants or the conduct of war.  Pretrial detainee rights don’t apply to combat prisoners.  There may be some floor of constitutional rights that any individual is entitled to, but the criminal-justice rights are not that floor.

So we’d say there’s no legal claim to start with.  And even if there were, we can’t see how Mr. Yoo would be a proximate cause of any injury.  It’s not as if he ordered Mr. Padilla’s treatment.  He merely opined that it would be lawful.

-=-=-=-=-

But there’s a deeper policy danger here, if the court sides with Padilla.

Right now, the United States is waging the most careful warfare ever.  And lawyers are a big part of it.  When an officer gets some video from a Predator or a C-130, or a radio call from troops in the field, and that officer has to make an urgent call right then and there whether to authorize fire, he’s going to get a fast legal opinion first.  A military lawyer is going to be consulted for a legal opinion on whether the action is appropriate.

If Padilla wins, then those lawyers will not be immune from lawsuit for the consequences of their legal advice, even though they’re not the ones giving the actual orders.  That’s going to have a huge chilling effect on whether those lawyers will give the advice they believe to be best, if giving the right answer could get them in trouble.  The result would be advice that unnecessarily hamstrings military operations, resulting in prolonged combat and unnecessary casualties and expense.  Either that, or officers will just start ignoring the advice, with equally negative results.

Likewise, siding with Padilla would have a chilling effect on lawyers throughout the DOJ.  The government relies on them to give the best legal advice they can.  But if their best advice is politically unpopular, they’re going to shy away from it in order to avoid personal liability when some shrill person files suit.

Our government needs legal advice that is right, not legal advice that is politically convenient.  Knocking down the immunity of government lawyers from suit would only knock down the government’s ability to get the best advice it can.

And that’s just stupid.

[Edit: We forgot to add that this would also be a victory for the enemy, giving them yet another long-term weapon for their ongoing lawfare -- fighting those countries with a rule of law by using their own law as a weapon.  See more on this at our Primer on International Law here.]

There are four Mondays left in June.  Four more days in which the Supreme Court is expected to announce its decisions in the 27 or so cases still out there this term.  That’s about one case per day from now till then.  We’re picturing the Justices pulling all-nighters, stacks of empty pizza boxes in the halls at 2 a.m. next to the burn bags (do they still use burn bags there?), and sleepy zombie-like clerks dropping in their tracks every now and then.

Some of those cases have to do with boring old civ pro or shipping or labor law.  But a whole bunch are about the cool stuff, criminal law.  Here are a few of the criminal cases we’re watching particularly closely:

Black v. United States
Weyrauch v. United States
Skilling v. United States

This trio of cases attack the “honest services” fraud law.  18 U.S.C. § 1346 was supposed to prevent political corruption, but Congress wrote it so sloppily that it’s become a catch-all crime for federal prosecutors.  Anyone can get charged with it, and nobody knows what it means.  The Court telegraphed its dislike of the statute during oral arguments of all three cases.  We’re going to be shocked and appalled if the statute survives the month.  (Read more of our commentary here.)  The feds also see this going the way of the dodo, as evidenced by their rush to add other charges to prominent cases after the first oral arguments in December.

Holder v. Humanitarian Law Project

This one also delves into the constitutionality of a law, this one intended to stop people from providing assistance to terrorists.  Like the honest services statute, however, 18 U.S.C. § 2339B(a)(1) is pretty darn vague.  It also seems to limit perfectly lawful speech, which would also be unconstitutional.  The feds (represented by nominee Elena Kagan) seem to want the law interpreted very broadly, to maximum effect, but during oral arguments the Supremes expressed deep problems with the statute.  It might get kicked back to the lower courts for more fine-tuning of the issues, though, rather than an outright invalidation of the law.

Dillon v. United States

There are a lot of federal inmates serving unfairly long sentences, due to the bizarre discrepancy in sentencing for crack vs. powder cocaine.  (See our latest piece on this here.)  In 2007, the Guidelines were amended a teeny bit, permitting a 2-level reduction for crack cases.  In 2008, that was made retroactive, so prisoners could get resentenced.  Dillon wanted to get resentenced.  But he wanted more than the 2-level reduction.  He wanted a departure from the Guidelines recommendation itself, as permitted by Booker.  But the feds say Booker only applies to full sentencing proceedings, not to resentencings like this — this is just an adjustment of the guideline range that should have been applied to a pre-Booker sentence.  As Scalia pointed out at oral argument, that would require the courts to essentially disregard Booker.  And given the universal loathing of the crack/powder disparity, we think a finding for Dillon would give the courts the ability to take the injustice into account and impose variance sentences more proportional to those for powder.

McDonald v. City of Chicago

A follow-up to the Heller case a couple of years ago, which said as a matter of federal law that the Second Amendment recognizes an individual right to own a gun, which predated the Constitution.  In McDonald, the issue is whether that applies equally to the states as well, or whether the states can limit or regulate the right to bear arms.  The Court seems likely to narrowly rule that the 2nd Amdt. is incorporated into the 14th, and that the right’s a fundamental one that all the states have to respect, but not get into whether this limitation or that regulation is constitutional.  Those details can be dealt with in the lower courts on remand.

Magwood v. Patterson
Holland v. Florida

Habeas cases that we admit not reading up on when they were argued.  In Magwood, the defendant already won a federal habeas petition, and got resentenced.  Now he’s got a second federal habeas, challenging the new sentence on constitutional grounds.  He could have challenged the original sentence on those same grounds.  So the issue is whether this new petition is a “second or successive” claim that has to be rejected under the AEDPA.  Just on a gut level, we don’t think the defendant’s got much of an argument here.

Holland deals with a defendant whose habeas petition was filed too late, due to the negligence of his attorney.  The defendant wants the limitations period tolled equitably, in the interests of justice.  Florida says equitable tolling should never be allowed.  Seems like the Court’s going to allow it, but clarify when it’s available.

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Also, we’re still waiting on an important case out of New York’s Second Department, which might create a new emergency exception to the warrant requirement.  Fingers crossed.

When we first moved to NYC in 1997, we thought we knew what racial tension was. After all, we’d grown up in various parts of the South and out West, and had seen and heard quite a lot of invidious prejudice. But we hadn’t seen anything, by comparison. We’d seen dislike and resentment out there, but the vitriolic race relations of the 50s and 60s had died down by our childhood in the 70s and 80s. We weren’t prepared at all for the outright hatred various groups expressed for each other in the grand metropolis. That first year here in the Manhattan DA’s office was an eye-opener. The city, especially the outer boroughs, seemed less like a melting pot than a petri dish, with virulent strains of hatred all fighting each other. Many working-class whites routinely used epithets one almost never heard in the South any more, and openly despised black people. Lots of black people hated white people right back, and seemed to have a bizarre animus towards jewish people, who we’d always thought of as champions of civil rights. African immigrants hated African-Americans, who they saw as lazy and as giving them a bad name. Every ethnic group seemed to have a derogatory name that everyone else used.

And this internecine feuding was still turning to violence in the ’90s. We’d never heard about the Howard Beach or Bensonhurst dramas of the late ‘80s, but here in the city that tension was still high. Al Sharpton hadn’t yet faded into irrelevance, and it seemed like he and his protestors spent half their time marching in circles somewhere or other. Right before we started at the DA’s office, the Abner Louima case happened, leading not only to renewed distrust of the NYPD, but even more racial tension. And just when that started to die down, the Amadou Diallo shooting flared it up again.

It was shocking to us. But to our friends who’d grown up here, it was just normal background. It was just the way things were.

So that’s what the culture was like in 1996, when a fight between some Italian men and a black man over a parking spot turned violent, the black man swung a baseball bat at an older Italian man, whose son — an off-duty cop — shot the black man to death.

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On October 3, 1996, in the suburb of Dobbs Ferry just north of the city, a black man named Charles Campbell parked his Corvette at a deli, in a spot reserved for deli customers. But he went into a different store across the street. When he came back, he saw the owner of the deli placing a sticker on the Corvette. Campbell got angry and started a fight. The deli owner, his son Richard DiGuglielmo (the off-duty cop), and a third man (Robert Errico, the cop’s brother-in-law) wound up fighting with Campbell.

The fight ended, and Campbell walked back to his Corvette. During the fight, his shirt had come off, and the deli owner brought it over to him while his son and the other man went back towards the deli. But then Campbell opened the back of the Corvette, grabbed a metal baseball bat, and kneecapped the old man with it.

The old man went after him to try to take the bat away, while his son ran into the deli to get a pistol. Campbell went to the other end of the parking lot, swinging at the old man with every step. By this time, the old man had taken a crack to the hand, as well. Several witnesses saw Campbell threatening with the bat, now, holding it in a stance like he was about to swing.

At that moment, DiGuglielmo ran up with the gun and shot Campbell three times, killing him.

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Two witnesses saw it from inside a truck parked right there. After the shooting, they made statements to the press and to the police that Campbell was still swinging the bat at the old man, had swung at his head, and was about to swing again when he got shot.

At trial, however, they testified differently, telling the jury only that Campbell was holding the bat in a batter’s stance, but was not swinging the bat, when DiGuglielmo shot him.

The trial was a mess. The local district attorney, Jeanine Pirro, was a publicity hound (and more than a bit of an embarrassment to those of us in other DA’s offices), and tried the case in the press, basically calling this a hate crime and accusing the DiGuglielmos of being racist. She dearly wanted to get a cop convicted here. After the defense rested, the prosecution figured out that they weren’t going to win on the charge of intentional murder, and switched their theory to “depraved indifference” to children who were on the street near the deli.

Forgetting that the prosecution’s job is to prove what really happened, and not plead in the alternative two different ways it might have happened, they asked for both theories to be presented to the jury as alternatives. The jury threw them a bone, convicting DiGuglielmo of depraved-indifference murder, not realizing that it carries the same penalties as intentional murder. DiGuglielmo got 20 years to life, for defending his father.

The appeals were a mess, too. We’ll spare you the details.

Fast-forward to 2006. The two key witnesses from the trial, who had witnessed the events from their truck, had now come forward with evidence that they had been pressured by the police to change their stories, during a course of police interrogation in the days following the shooting.

This was clearly new evidence that would have had a big impact on what the jury would have thought. And it was certainly evidence helpful to the defense that had not been disclosed by the People. So at the very least there was a clear Brady violation. And maybe it counted as newly-discovered evidence that would have resulted in a more favorable verdict.

So DiGuglielmo filed a CPL 440.10 motion to vacate the conviction. The court, to its credit, found this to be the right kind of newly-discovered evidence, and certainly Brady material.

In a detailed, 69-page decision, Judge Bellantoni vacated the conviction, and on September 19, 2008, DiGuglielmo was released from prison.

The DA’s office appealed.

This week, DiGuglielmo was ordered back to prison.

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What happened?

What happened is, the Appellate Division screwed up. You can read the opinion here, and see for yourself.

It’s a horrible decision, and we’re frankly surprised that it made it out of the draft stage in this form.

Here’s the logic, in a nutshell:

(1) Based on the testimony at trial, the jury must have concluded that the father was being the aggressor, and that the victim was backing away, and most importantly that the victim was not swinging at his head.

(2) The new evidence contradicts those conclusions. The new evidence is that the men in the truck saw the victim swinging at the father’s head, and was about to do so again. The new evidence is that they made multiple statements to that effect on the day of the shooting, but only changed their stories after several days of police pressure to do so.

(3) Because the new evidence is contrary to what the jury concluded, it must be something the jury didn’t believe. Therefore, the jury wouldn’t have believed this new evidence. And so the new evidence wouldn’t have changed the jury’s mind.

That’s circular reasoning. The jury didn’t believe the victim was about to take a swing at the old man. Therefore, the jury wouldn’t have believed evidence to the contrary. So it wouldn’t have made a different to introduce such evidence.

And how is that not Brady, at the very least?

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And compare this brief, careless decision with the more lengthy one below. Say what you will about it, Judge Bellantoni’s decision is not lacking in analysis of the law and the facts. And he clearly made every effort to do it right.

The judiciary must not take on the coloration of whatever may be popular at the moment. We are the guardian of rights, and we have to tell people things they often do not like to hear.” – Hon. Rose E. Bird. Our oath requires that we make the right decisions, even if difficult and unpopular. It must be stated that this Court, in its above discussions and ultimately, its decision in this case, certainly does not intend to disrespect the memory of Charles Campbell or the Campbell family. This decision was not made lightly. Indeed, for the past two years, the Court has struggled with, and considered, all of the arguments and positions connected with the issues in this case and it’s ruling is consistent with the undercurrent of the criminal justice system – that where an injustice has occurred, all benefit of the doubt, consistent with current case law and precedent, must be afforded an accused. Thus, for the factual and legal reasons stated above, this result is mandated by the principles of justice.

(Decision and Order, Sept. 17, 2008 at 67.)

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And it’s just a slap in the face for the Appellate Division to cite to People v. Tankleff, 49 A.D.3d 160, 180-181, in support of its decision here. In Tankleff, the defendant showed there was a reasonable probability that, had all of the new witnesses testified at trial, the outcome would have been different, and the Appellate Division granted Tankleff a new trial. Here, the same thing happened. So at a minimum DiGuglielmo ought to have been awarded a new trial.

Instead, the court simply sent him back to prison, without even giving a jury the opportunity to evaluate all of the new and old evidence and witnesses.

This decision sends an awful and disturbing message: Innocence is irrelevant.

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This week’s decision is one of the biggest screwups we’ve seen in a long time. And the result is tragic.

Think about it. The man was wrongly convicted in the first place, after a show trial making him a scapegoat of the racial politics of the day. He spent 11 years in prison, unjustly. But then justice finally prevailed, and he got his freedom back. He got to return to life and his family. And then, with a callous stroke of the pen, a badly-reasoned decision rips him away from that cherished freedom, and tosses him back into prison.

Going in the first time was bad enough. We can’t imagine how much worse it must be this time.

Badly done, Appellate Division.

[Our paralegal, Marty Tankleff (no stranger to unjust convictions himself) contributed to this piece.]

The Fifth Amendment says a person can’t be prosecuted twice for the same offense. So after a jury comes back with a verdict, if the government doesn’t like that verdict, then too bad, it doesn’t get a do-over. This is called “Double Jeopardy,” from the language of the Amendment saying you can’t “be subject for the same offense to be twice put in jeopardy of life or limb.”

Sometimes, Double Jeopardy applies even when the jury never reached a verdict. Usually, if the judge declares a mistrial, there’s no jeopardy problem and everyone does the trial over again. But there are exceptions, such as when the mistrial was caused by prosecutorial misconduct. Or when a judge orders a mistrial for no good reason. There’s a presumption that judges shouldn’t go around declaring mistrials, that cases should be allowed to go to verdict. So when a judge calls “mistrial” for no good reason, the defendant isn’t going to be forced to go through the whole thing all over again.

[Aside: We had that happen in one of our cases, when we were a prosecutor. In the middle of a drug trial, we were severely injured in a motorcycle accident (and by “severely,” we mean “it took 6 weeks to stabilize to the point where they could do surgery to put the bones back in”), and as a result we couldn’t finish the trial. Drug cases being all pretty much alike, and prosecutors being pretty much fungible, the DA’s office sent over another lawyer to finish out the case. The judge instead declared a mistrial, over the objections of both sides. The office wound up having to consent to dismissal on Double Jeopardy grounds. Whaddayagonnado.]

Back in 1824, the Supreme Court ruled in U.S. v. Perez that one good reason the judge can declare a mistrial is when the jury is deadlocked. When the jury cannot reach a decision, it’s not like the defendant’s being screwed by an unfair judge or an abusive prosecutor. So a judge is allowed to ask for a do-over with a different jury.

“To be sure,” the Court said, “the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious cases….”

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So that brings us to the case of Renico v. Lett, argued this morning before the Supreme Court (you can read the transcript here).

Reginald Lett was on trial for murder. The case was presented intermittently, five days out of two weeks, and the jury finally got to start deliberations at 3:24 p.m. on a Thursday. They deliberated for 36 minutes, then went home. On Friday (the 13th), they came in, deliberated for a mere four hours, and sent out a note. The note didn’t say they were deadlocked, but merely asked what would happen “if we can’t agree? Mistrial? Retrial? What?”

The judge brought the jury out and asked “is there a disagreement as to the verdict?” The foreperson said yes. The judge badgered the foreperson a bit, insisting on her predicting whether the jury could reach a unanimous verdict, and finally the foreperson said “no.” The judge immediately declared a mistrial.

Now this was highly unusual. Most judges, in our experience, give a supposedly deadlocked jury a few chances to go back and reach a verdict (three seems to be the magic number here in New York City). We’ve had jurors shouting at each other so loud that everyone could hear them plainly out in the courtroom. All that meant to anyone involved, however, was that they actually were deliberating. A zesty exchange of ideas is still an exchange of ideas.

At some point, either the second or third time the jury says they’re deadlocked, the judge will give an Allen charge. Basically, the jurors are told something like “everyone’s been working their asses off on this case for a long time, costing a shitload of money, and you jurors don’t seem to be holding up your end of the deal. If you can’t do your job, everyone’s going to have to do it all over again with some other jurors, who’ll have to deal with the same stuff you are. Now, take all the time you need, and don’t change your mind without good reason, but get back in there and someone change their mind so we can all go home.” (Ed. note: citation required.)

Depending on who your jurors are, this can be good or bad for the defendant. Generally, whoever’s side the holdout was on, loses.

But the judge in Renico v. Lett never did any of that. Hell, the jury never even said it was deadlocked to begin with. All the jurors wanted to know was what might happen in the event that they should wind up being deadlocked. The judge totally forced the deadlock language onto the record.

All the judge had to say was “it’s none of your business what decision I may or may not make based on your decision. But I can’t do my job until you’ve done yours. So if that hypothetical query was your only question, please get back to work.”

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After the mistrial, Lett had to go through a whole second trial. The prosecutors had now seen the defense’s cards, knew what arguments the defense would make, and presumably did a better job of shutting them down, because this time the jury had no problem finding Lett guilty.

Lett appealed, on Double Jeopardy grounds. This was in Michigan, and the state’s supreme court said no, the judge did everything right under Perez.

Lett petitioned the federal court, which granted habeas on the grounds that the trial court did “fuck-all” to ensure that the jury was really deadlocked. (Ed.: Citation needed again.) The Sixth Circuit agreed.

So Michigan appealed to the Supreme Court, and that gets us to this morning’s arguments.

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It was quite an argument. Neither lawyer seemed to have real mastery of the issues, and so they were wide open to attack from opposing justices. And so sympathetic justices would throw out lifelines. It was like a legal game of catch-and-release.

Justice Sotomayor kicked things off by wondering out loud how anyone could find “that the court was acting deliberately, responsibly, and not precipitously.” Michigan’s lawyer replied that “you have to look at the totality of the circumstances” — weasel words, in our experience, used when the facts are inconvenient. The circumstances were that you could sort of interpret that the jurors were “acrimonious” and you could sort of interpret that they had been deadlocked.

This was not particularly convincing. So Justice Ginsburg fed the state’s lawyer an argument, asking “are you urging that, because the trial court judge was there on the spot, saw the jury, worked with the jury, that that’s something that deserves a special measure of respect?” The grateful lawyer — as everyone seems to do when lobbed a softball like this — replied, “Absolutely.”

That was beside the point, of course. The issue was whether the trial judge had taken reasonable steps to ensure that a verdict could not be reached. Justice Kennedy got everyone back on track, gently suggesting that the judge might have excused the jurors and then asked the lawyers whether they thought a mistrial was appropriate. Getting the input of both counsel is typically considered part of the judge’s weighing of the situation in these matters, after all.

After some back-and-forth, Justice Breyer pointed out that of all the cases where a mistrial was declared, very very few are going to have facts like these. “What do you want me to read,” he asked, “to see that this is not an extreme case that counts as an abuse of the judge’s discretion?” During a long colloquy, Michigan’s lawyer never was able to answer the question. He started to admit that it’s pretty rare, when Scalia jumped to his rescue, pointing out that it’s not the state’s burden to prove it’s normal, but rather it’s the defendant’s burden to prove it’s abnormal.

It was clear that Scalia was irritated at the lawyer for not responding to these questions as he could have. But he was still on Michigan’s side. That did not seem to be the case for the other justices who spoke up. It was pretty obvious the rest of them thought the judge hadn’t done enough.

Scalia was waiting to pounce on the defendant’s lawyer, to ask how they’d met their burden of proof to show that there was not a deadlocked jury. Counsel didn’t do a great job with this, trying to somehow argue that there was no factual finding of a deadlock, though it was implicit.

And the defendant’s counsel didn’t do so hot during a tag-team by Alito and Breyer, where they got her to admit that there was no case out there where something like this was held to be an abuse of discretion. The Chief Justice tried to help her out, but she flubbed it, citing only a general principle against irrational and precipitous decisions. Scalia would have none of that, pointing out that what’s needed here is proof that the judge’s decision was contrary to, or involved an unreasonable application of, clearly established federal law.

(We do our share of habeas petitions, ourselves, so we ought to mention that Scalia’s correct here. You can’t just say it was an abuse of discretion. You have to say that there’s a federal standard that was applied, and it was applied wrong.)

Stevens jumped to her rescue, pulling her away from the precipice of whether there was an abuse of discretion, and feeding her the line that the issue is really “whether there was a manifest necessity” to declare the mistrial.

There was some back-and-forth with the Chief on this, unfortunately without much meat to it. But it did contain our favorite quote from the term so far:

CHIEF JUSTICE ROBERTS: I’m sorry, please finish your sentence.

MS. McCOWAN: No.

CHIEF JUSTICE ROBERTS: Okay.

Sotomayor finally got the lawyer to say something worthwhile, by asking how the state court unreasonably applied federal precedent. The lawyer remembered that Arizona v. Washington requires that the judge exercise sound discretion, and here the judge didn’t exercise any discretion. And failure to exercise discretion is an abuse of discretion. The Michigan supreme court improperly applied federal law by failing to see that.

And here she was on solid ground at last. Scalia’s retort she could now easily clarify. The Chief spelled it out for her a little better, that some abuses of discretion aren’t going to be enough for a habeas challenge, but they will be if the state supreme court unreasonably applies the federal standard to make its call.

That’s how she should have started her argument, but at least she got to it in the end.

The rest of the defense’s argument was spent parsing the jury’s note and the transcript, to figure out what was really being said, what might have been meant, and what else might have been said. That’s important, because it means the justices were getting to that issue. They had crossed the threshold of whether the legal standard applies here, and were now diving into the merits. And that’s good for the defendant, because it’s hard to say that the judge was acting anything other than precipitously here. (Ed. note: Are you sure the correct word isn’t “precipitately?”)

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So, given the way the argument went, how do we think the Court will decide the case? We’ll say 6-3 in favor of Lett. Scalia is not convinced that the AEDPA was satisfied here, and Thomas will probably go along with him (though statistically, he doesn’t side with Scalia any more often than other similar justices side with each other). Alito didn’t seem all that taken with the defense side. But Roberts, Stevens, Breyer, Kennedy, Ginsburg and Sotomayor all seemed slightly on the side of calling this an abuse of discretion.

So we predict they’ll say the judge should have at the very least gotten some input from trial counsel, and maybe even some more solid evidence of deadlock, before calling a mistrial. That was an abuse of discretion, and the Michigan supreme court improperly applied Supreme Court precedent in finding otherwise. And the abuse of discretion was severe enough that the defendant got screwed, triggering the protections of Double Jeopardy.

We’ll find out if we’re right in June.

The Fourth Amendment says the police can’t go into your home or other private place without a warrant. Over the years, we’ve come up with a lot of exceptions to the warrant requirement. So many, in fact, that getting a warrant has become the exception, and the exceptions have become the norm.

That’s because privacy isn’t the only interest society has here. The various exceptions to the warrant requirement allow the police to go in when other important interests outweigh the privacy interest.

One common exception to the warrant requirement is the Emergency exception. Under the emergency rule, the police can go in when there is good reason to believe there’s someone inside who needs help right away — either they’re seriously hurt, or they’re in danger.

In New York, that rule was formalized by the Mitchell case in 1976. The Mitchell rule has two objective conditions, and one subjective condition. If all three are met, then the police would be allowed to enter under the emergency rule. The objective conditions require that a reasonably prudent officer would first have thought there was an emergency, and second would have had probable cause to believe the emergency was inside the place to be searched. The subjective condition was that the police had to actually be going inside to help someone — the emergency couldn’t be a pretext for some other ulterior motive such as looking for evidence.

For about 15 years, now, the U.S. Supreme Court has been rejecting subjective rules like that. So far as federal law is concerned, the Supremes don’t care if the police had some ulterior motive or pretext. So long as there was a legitimate basis for the police conduct, they don’t care what the police were actually thinking.

So in 2006, in the Brigham City case, the Supreme Court specifically addressed the three-part Mitchell rule, and said New York’s subjective condition is not required under federal law. All federal law requires is that the police had an objectively reasonable basis to believe that there was an emergency, and probable cause to believe that the emergency was inside the place to be searched.

That’s only the federal rule, however. Federal law only provides a minimum of protections, a base line of individual rights. The states can’t give less protection, but they can certainly grant greater protections. So New York remains free to adopt the Brigham City rule, or keep the Mitchell rule, or come up with a new one. (New York could even get rid of the emergency exception altogether, though that would be a silly result — nobody wants the police to be forced to watch helpless from the sidewalk while someone is being beaten to death on the other side of a window.)

But to date, New York’s courts have neither adopted nor rejected the Brigham City rule. It’s still up in the air whether the subjective prong will continue to be part of the rule in New York. This uncertainty has been going on for nearly four years now, and that’s bad for all concerned. It’s certainly high time to settle the issue.

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The other day, we were asked for a solution. We were arguing an appeal here in New York last week, which dealt only with the objective prongs of the rule. The People were appealing from a suppression ruling, and they were claiming that the search was good under the emergency doctrine of Brigham City. The hearing court never applied the subjective prong of the Mitchell rule, so its validity was not really at issue in the case.

So imagine our surprise when the court asked us what New York’s rule ought to be now, whether the state should keep or abandon Mitchell’s subjective prong. We were surprised, but not unprepared of course. We proposed that there does need to be a subjective part of the rule, but not the pretext rule of old.

There needs to be a subjective belief on the part of the police that their search was lawful. They had to have some justification for their search at the time, whether it was an emergency or some other exception to the warrant requirement. Nobody wants a rule that gives the police an incentive to commit a bad search, knowing it’s bad, in the hope that some clever prosecutor down the road can think up some objective justification after the fact.

So what would our proposed rule look like? Let’s take a crack at writing it out in plain English.

Under the Emergency exception, the police may conduct a warrantless search when:

1) Based on evidence actually known to the searching officer before commencing the search, a reasonably prudent officer would have believed that a person was in danger of serious physical injury or death;

2) Based on evidence actually known to the searching officer before commencing the search, a reasonably prudent officer would have thought it more likely than not that the emergency was inside the place to be searched; and

3) Before commencing the search, the searching officer actually and reasonably believed the search to be justified by this or some other exception to the warrant requirement.

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This seems to be nothing more than good common sense.

Unlike previous language, we go out of our way here to specify that the objective basis has to be based on facts known to the officers at the time. They can’t justify their search with facts that they only learned about later — if they don’t have reason to think someone’s injured inside, they can’t justify their bad search just because they happened to find an injured person there. Similarly, they can’t justify their search with baseless suppositions that have no foundation in what they knew at the time — if they don’t have reason to think someone’s injured inside, they can’t justify their bad search after the fact with a hypothetical scenario they clearly hadn’t considered at the time. (And if you think this should go without saying, you should read the People’s brief in the case we just argued.)

We also go out of our way to replace legalese with its plain language definition. So “basis approximating probable cause,” for example, becomes “more likely than not.” This makes the rule more comprehensible, and thus more easy for police to follow and courts to enforce. We’re a big fan of plain language.

Most importantly, of course, we changed the pretext language of Mitchell to a more reasonable requirement that the police at least think they have some lawful basis for their intrusion. And that they have some reasonable basis to think so. They don’t have to have subjectively thought there was an emergency at hand, but they had to have subjectively thought their search wasn’t unlawful.

Any other rule, we think, would send precisely the wrong message to the police. The cops would have an incentive to go ahead and commit searches they know to be bad, on the off chance that some clever prosecutor can think up a justification after the fact (which is precisely what happened in the case we just argued, if you’re wondering).

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We could be wrong, however. So we invite suggestions on what the New York rule ought to be. What do you think?

The Chief was at it again.

Everyone had their theories. J.P. said the Chief had lost it, gone soft in the head. Nino thought he was just having fun. Sam didn’t say anything, so he was probably in on it.

None of us thought it made any sense, though. Except me. I had my own ideas. What the Chief was doing made perfect sense, if anything can make sense in this world. He was like me.

No, not like me. I only have contempt for the tedium, the routine drudgery the rule-boys keep feeding us. The Chief wanted to do something about it.

But his methods… Like some Frankenstein, trying to animate the dead… Well, maybe he was more like me than I imagined.

While sipping a cup of last night’s coffee, I decided I liked it. I silently congratulated the guy, and wished he’d keep it up.

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At the beginning of the ’08 term, Chief Justice Roberts sparked a miniature kerfuffle when he opened a decision with a factual recitation in the style of Hammett or Spillane. It wasn’t half bad, and it certainly got the facts across without losing the reader’s interest. But it wasn’t at all what we’re used to reading in Supreme Court opinions. So one heard comments and criticisms in the corridors and over cocktails, for a few days anyway. But people got over it. After all, it was only a dissent to a denial of cert, and who even reads those? It’s probably the one kind of opinion where a justice could get away with a bit of fun. It was just a one-off, let it go.

Except it wasn’t just a one-off. It was just the beginning. Since then Roberts has kept at it, putting a bit of dramatic flair into his opinions. Particularly, it seems, in cases that aren’t all that dramatic to begin with.

Take today’s opinion, for example, in Beard v. Kindler. The issue couldn’t be more boring — whether a discretionary ruling on state procedure is something that can be pursued in a federal habeas claim. The case has nothing to do with the underlying facts of the case, but instead inquires into whether the state courts had regularly followed that procedure, and the general policy arguments for and against allowing habeas.

Yawn. If Dirty Harry or Mike Hammer were here, they’d be shooting or punching someone. They’d deal with the tedious legal processes and technicalities, but on their own terms.

And so did Chief Justice Roberts. He dealt with it on his own terms, in his own way, by opening his decision with a lengthy and dramatic recitation of the underlying events — events that have absolutely nothing to do with the discrete legal issue before the court.

Roberts told the gritty story of Joseph Kindler, which itself seems made for TV or a pulp novel: In 1982, Kindler and two associates robbed a store, only to get caught during the getaway. “In a harbinger of things to come, Kindler escaped.” When one of the associates agreed to testify against him, Kindler and the other one bludgeoned him almost to death with a baseball bat, shocked him repeatedly with a cattle prod, threw him in the trunk, hauled him to the river, tied a cinderblock around his neck, and threw him in the river, where he died of drowning and massive head injuries. He was convicted of murder, the jury recommended execution, but before sentencing Kindler escaped. Using smuggled tools and a lot of help from other inmates, he sawed through the bars of his maximum-security prison, and fled to Canada. He got caught there committing more crimes. Canada refused to extradite him, because he faced execution, and Kindler became a minor celebrity, going on TV and everything. Eventually, however, Canada agreed to extradite him, whereupon he promptly escaped again. With the help of his fellow inmates, he broke through a skylight in a high ceiling, climbed to the roof, then rappelled down a rope made of 13 bedsheets. Kindler made it, but when another tried to follow the sheet ripped, and he fell 50 feet to his death. Kindler was caught again after America’s Most Wanted did a segment on him. Several years later, he was eventually extradited back to the U.S. In the meantime, the state court had long since dismissed his original sentencing motions, as he had escaped before they were decided. The case has been going back and forth on appeal over that dismissal, ever since. The original arrest was in 1982.

Roberts tells it much more entertainingly than this, of course. But almost none of that was necessary or even relevant. It could just as easily have been replaced with “A jury convicted Kindler of capital murder for the brutal slaying of a state witness. The jury recommended a death sentence, and Kindler filed postverdict motions. Before the trial court had considered the motions or the jury’s death recommendation, Kindler escaped. While Kindler remained a fugitive, the trial court dismissed his postverdict motions. Seven years later, Kinder was returned to court, and moved to have his motions reinstated. The trial court found that the original judge had not abused his discretion, denied the reinstatement motion, and imposed the death sentence.”

Frankly, we like it Roberts’ way better.

And we hope he keeps it up, particularly in the more humdrum cases. It does no harm, and it might even keep one or two young associates from nodding off during some tedious night of research down the road.