The Criminal Lawyer

With only two more decision dates remaining in this Supreme Court term, we’ve got our eyes on four criminal cases yet to be decided. Either next Monday (June 22) or the following Monday (June 29), we should expect to hear from the Supremes.

We’re going to make a prediction right now that all four cases will be decided in favor of the defense. Furthermore, we predict large majorities or unanimous decisions in each case. (Go ahead and laugh, we’ll wait for you.)

The four cases are:

Safford USD v. Redding, No. 08-479. We talked about this one before (see here). A public school had an absurd zero-tolerance policy (surprise, surprise), this time prohibiting prescription Advil. A girl got caught with some. She blamed someone else (surprise, surprise). School authorities confronted the other girl, Redding, who denied being involved. They searched her backpack, and found nothing. They searched her clothes, and found nothing.

Now at this point, a reasonable person might have figured out that the girl who was caught with the actual pills was trying to pull a fast one here. But these were not reasonable people — they were public school officials. So they had Redding — a 13-year-old girl — expose her breasts and vagina. They found no pills. Then they shook out her underwear, and found nothing. Then both the school nurse and another school official physically searched the girl’s body. They found nothing.

Now at this point, a reasonable person would have surely figured out that there was nothing to see here. But these bright bulbs instead stuck the girl in the principal’s office alone for a few hours, didn’t contact her folks, and didn’t bother searching anyone else.

The girl sued, claiming (surprise, surprise) that her Fourth Amendment rights had been violated.

The Supreme Court has now been asked to decide whether public school officials are permitted by the Fourth Amendment to perform a warrantless strip search of a student whom they merely suspect of possessing forbidden contraband.

The school wants the Court to say yes, schools can perform strip searches any time they have reason to suspect that a student has forbidden contraband. They want a rule that doesn’t let judges second-guess the judgment of school officials.

Our prediction is that the Court isn’t going to grant such a bright-line rule. For the reasons we set out in our previous post, we predict that the Court will require a case-by-case analysis. It will be fact-specific, whether the officials have evidence that is sufficiently credible to justify an articulable suspicion that contraband will be found during a strip search. And it will require a balancing, to ensure that the invasiveness of the search is proportionate to the danger of the contraband sought. A strip-search to find an explosive is one thing; but examining a young girl’s private parts to find Advil is another thing entirely.

* * * * *

The next case we’re looking for is Yeager v. United States, No. 08-67.

The issue in Yeager is collateral estoppel after a hung jury. Specifically, a jury acquitted on some counts, and hung on other counts, all sharing a common element. Perhaps the only explanation for the acquittals is that the jury decided that common element in the defendant’s favor. So is the government prevented from re-trying the hung counts, by collateral estoppel?

Yeager was an executive with Enron’s telecom unit, charged with 176 white-collar crimes. After a three-month-long trial, the jury acquitted him on the counts of conspiracy, securities fraud and wire fraud. But the jury hung on the counts of insider trading and money laundering.

The Fifth Circuit said that one explanation for the acquittals is that the jury found that Yeager had no inside information. That was also an element of the insider trading count. But the Circuit said it was impossible to determine “with any certainty what the jury” actually must have decided. So that meant there could be no collateral estoppel precluding a new trial.

At oral argument, Justice Souter honed in on the real issue here, which is a conflict between two underlying principles of our current jurisprudence. On the one hand, once a jury has determined a fact, the government doesn’t get a second chance to prove it. On the other hand, the government is permitted a full opportunity to convict, so it is allowed to re-try counts where a jury hung. Chief Justice Roberts and Justices Kennedy and Breyer explored the conflicting principles in greater depth. Although the government’s attorney was more deft at handling the philosophical argument, and Yeager’s attorney seemed to be stuck in a surface argument, it seemed by the end that the Court was siding with Yeager.

What seems to have killed the government’s position here was its assertion that acquittals should not affect retrials if they are not “rational” — meaning they are inconsistent with the jury’s remaining outcomes — and that a hung count is an outcome that can be used to determine whether the actual verdicts were rational. That not only conflicts with precedent that permits inconsistent verdicts, but also defies common sense by treating the absence of a decision as an affirmative determination.

This one’s a tossup, but we’re going to predict a ruling in favor of Yeager here.

* * * * *

The third case to watch for is District Attorney’s Office v. Osborne, No. 08-6.

Osborne was convicted 14 years ago for kidnapping and sexual assault. The victim was brutally assaulted and raped in a remote area in Alaska. Osborne was alleged to have used a blue condom. A blue condom was found at the scene, containing semen. Osborne now wants to get discovery of the semen, and have DNA testing done at his own expense, in the hopes that it will demonstrate his innocence. The State of Alaska refused.

Osborne brought a 42 U.S.C. §1983 civil rights suit, arguing that Alaska’s refusal violated his Due Process rights. The district court dismissed the suit, saying he should have brought a Habeas claim instead.

The Ninth Circuit issued two decisions. The first was that a §1983 suit is fine here, because the outcome would not necessarily undermine the state-court conviction. The DNA evidence could potentially prove his guilt, or be inconclusive. It would only require Habeas if the evidence would have to demonstrate innocence. And he could still bring a Habeas later if the §1983 action fails.

In its second decision, the Ninth Circuit forced the Supreme Court’s hand. The Supremes have long taken pains to avoid deciding whether a convict can overturn his conviction based only on a claim of innocence, rather than on pointing out defects in the way the trial was conducted. But the Ninth assumed that this is permissible.

Then, based on that assumption, the Ninth said that in circumstances like that — in fact, only in circumstances like that — where a convict could later use the evidence in a freestanding innocence claim, then Brady gives a post-conviction right to access potentially favorable evidence.

The Supreme Court is now deciding both issues: whether the §1983 suit is appropriate for accessing DNA evidence post-conviction, and whether Due Process requires such access if it could establish innocence.

At oral argument, Justice Souter barely let the Alaska A.G. get a word out before launching a lengthy debate over whether Osborne merely sought evidence that might or might not allow him to establish a claim later, or whether he sought evidence that he affirmatively believes will be the basis of a claim of innocence. By the end, both Scalia and Ginsburg had gotten involved, and the Chief Justice was wondering whether the State even had the evidence any more. Breyer got everyone back on track, pointing out that §1983 was appropriate when you didn’t know what the evidence was yet, and Habeas is appropriate when you do know. And here, nobody knows what the DNA evidence is, yet. So how come the State doesn’t have a constitutional obligation to give him the DNA?

The AG gave a terrible response, saying that Osborne simply followed the wrong procedure. Half the bench jumped in to interrupt him, dumbfounded at the assertion, given that Alaska doesn’t have a statutory procedure in the first place. The one statute out there (as Scalia pointed out) first requires an assertion that the evidence establishes innocence, which is the one thing nobody can say yet, because it hasn’t been tested yet. Souter and Scalia tag-teamed the AG on that mercilessly. At one point, Scalia had the audience laughing at the AG. For the rest of the oral argument, the Justices would refer to the fact that they “must have missed” this procedure being mentioned in any of the briefs.

By the end of the AG’s time, nobody had even gotten to the juicy issues yet. Breyer tried to give the AG a chance to talk about it, but the AG just went back to his procedural claim that had used up his time already. This only frustrated the Justices.

The U.S., as amicus to Alaska, started off better, getting to the heart of the issue — the issue the Supreme Court has so long avoided — arguing that prisoners do not have the right to challenge their conviction based on a freestanding claim of actual innocence. But Souter suggested that the right may be found, “not in procedural, but in substantive Due Process,” and asked a hypothetical about letting counsel speak to another prisoner who claims to have exonerating evidence. The Deputy S.G. floundered, and got laughed at as well. They never even got to the constitutional issue (as Souter repeatedly pointed out), and got mired in whether the government even has an interest here in the first place. And then time was up.

Osborne’s lawyer did much better. He deflected the Court’s concerns that at trial the defense had chosen not to test the DNA, and thus must have believed it would show guilt, by pointing out that both sides chose not to test it, because the tests available would have destroyed all of the evidence, precluding later testing.

The Justices across the board expressed concern that they were being asked to create a new constitutional right here. Shouldn’t a prisoner have to make a claim, under penalty of perjury, that he is actually innocent first? Shouldn’t there be a requirement of due diligence, so that claims aren’t made years and years after they could have been brought? Osborne’s attorney admitted that those are fine ideas, and wouldn’t be an obstacle here.

Then Scalia tipped his hand a little. Osborne’s lawyer observed that this is the first case where a prosecutor conceded that DNA would be “absolutely slam-dunk dispositive of innocence,” but doesn’t let the prisoner access it. Scalia thought out loud, “you know, it is very strange. Why did they do that, I wonder?” “Well, it’s very…” Scalia interrupted, “there was a lot of other evidence in the case, wasn’t there?” “Well, that’s…” Scalia cut in, “I don’t know what they thought they were doing.”

Scalia, for one, is not likely to side with the DA’s office here.

Souter came back to his conclusion that this is a substantive Due Process issue, which would require that the prisoner first claim that he is actually innocent. This conflicted with the sworn testimony before the Parole Board admitting guilt. But Breyer pointed out that prisoners often wisely admit guilt before such Boards, because they’re not getting out otherwise. (As defense lawyers like to say, forget guilt or innocence, “out is out.”) So relying on Parole Board admissions would be an arbitrary basis for withholding DNA evidence. So “suppose we said that the rule is non-arbitrary, with illustrations. Send it back to the states. And of course, when they apply their own statutes, by and large they’re not being arbitrary.” Osborne’s counsel agreed, “I think that’s a very sound approach to this.” Breyer responded, “well, it does help you win.”

I don’t think Breyer or Souter are siding with Alaska here, either.

The Chief Justice wondered if the right would be depend on the accuracy of the testing available. No, said Osborne’s lawyer, it has nothing to do with it — the right would just prohibit the state from arbitrarily preventing access to evidence. So long as there’s a reasonable probability that the test will demonstrate evidence, then that should be enough.

On rebuttal, the AAG got maybe three words in edgewise.

So just going from the oral argument, we’re going to predict a loss for Alaska.

Now whether that means a whole new constitutional right or not, well we’re not so sure. This only affects a handful of defendants whose convictions came before the Federal Innocence Protection Act in the mid-1990s.

The trick, though, will be whether the Court can continue to avoid the elephant in the room, the issue of whether one can assert a freestanding claim of innocence. The Ninth Circuit made it a prerequisite, and both the liberal and conservative Justices seemed to put a lot of weight on whether the prisoner first asserted innocence.

We predict that the Court is going to go all the way here. And as long as we’re going out on a limb, we’ll also predict a unanimous decision.

* * * * *

The final criminal case yet to be decided is also the oldest: Melendez-Diaz v. Massachusetts, No. 07-591.

The issue is straightforward: Is a lab report, by itself, a form of testimony for Confrontation Clause purposes, per Crawford v. Washington, 541 U.S. 36 (2004)?

Crawford says you can’t introduce earlier statements of a government witness, if they hadn’t been subject to cross-examination.

Well, a police lab report wasn’t subject to cross-examination when it was created. But they are often admitted into evidence without live testimony from the chemist or forensic expert who made the report — they’re self-authenticating. If lab reports are testimonial, then Crawford would preclude this practice. If they are not testimonial, but merely a record, then they could continue to be admitted without live testimony.

The Massachusetts Supreme Judicial Court looked at this conundrum a couple times, and decided that drug analysis reports were simply records of “primary fact, with no judgment or discretion,” by the chemist who prepared them. So they weren’t testimonial, and there was no Confrontation Clause problem.

Melendez-Diaz was the defendant in the second such case, which affirmed the first one.

It’s a sure bet that Scalia is going to side with the defendant here. He has long been a champion of the Confrontation Clause, and his contributions at oral argument were true to form.

The Massachusetts AG was frankly an embarrassment, making inaccurate assertions (and being corrected by the Court), resting heavily on the lame argument that nobody’s made this particular claim before, and claiming that requiring chemists to testify would be an “undue burden,” even though it’s no such burden to California or New York or any other state where it’s routinely done at trial. Kennedy even coached the AG with arguments that she ought to have been making, and scolded her when she still didn’t make them.

Justices Kennedy, Scalia and Stevens had little patience for the amicus Assistant S.G., whose argument was that machine-generated reports aren’t testimonial. There’s a difference between an automated record and a computerized document created for the purpose of proving an element of a crime at trial. And they’re different from computerized documents reflecting the observations and conclusions of a human being.

Based on how the oral argument went, we’re going to predict yet another win for the defendant.

I love reading Scott Greenfield’s blog Simple Justice. He posted a good one the other day called “Another Prosecutor Loses Her Virginity,” about a former prosecutor, Rochelle Berliner, now a defense attorney, who just came to the realization that cops sometimes lie.

Her epiphany was published in Saturday’s New York Times, in an article headlined “Drug Suspect Turns Tables on NYPD With Videotape.” A pair of defendants had actual video evidence that the cops had totally fabricated the entire basis for their arrest, and they gave the video to Rochelle.

”I almost threw up,” she said. ”Because I must’ve prosecuted 1,500, 2,000 drug cases … and all felonies. And I think back, Oh my God, I believed everything everyone told me. Maybe a handful of times did something not sound right to me. I don’t mean to sound overly dramatic but I was like, sick.”

Scott has a typical defender’s take on this.

What is disturbing about Berliner’s exclamation is not that she spent 14 years prosecuting people without having realized that maybe, just maybe, her cops weren’t perfect. That’s to be expected of career prosecutors, who often spend their entire careers with their heads deeply embedded in the cops’ derrière. It tends to give one a poor view of reality. It’s that she spent four years since leaving Special Narcotics as a defense lawyer and yet, not until now, was aware of the fact that cops, sometimes, fabricate crimes out of whole cloth. That’s four years of defendants represented by someone who was certain that they wouldn’t have been arrested if they weren’t guilty.

. . .

Rochelle Berliner now knows better. Welcome to the ranks of criminal defense lawyer, where we don’t have all the answers but we do know that the prosecution doesn’t either. You’re lucky that you’ve joined in the age of pervasive video, or you still wouldn’t believe this possible. Imagine how many times before the age of video Dominican immigrants like the Colon brothers were convicted for crimes that never happened, with someone like you feeling awfully good about it. I can understand why this would make you sick.

So congratulations on losing your virginity. I hope it didn’t hurt too much. I’m sure it didn’t feel very good for Jose and Maximo Colon, and I hope Police Officer Henry Tavarez loses his soon.

We didn’t want to comment on this, at first, because it so happens that we worked with Rochelle for a few years in Special Narcotics, and we knew and liked her. And frankly, she is well-equipped to defend her own self if she so desires.

But Scott’s piece, and a couple of the comments posted to it, kept nagging at us. There are some things we think really ought to be said here. So here’s our two cents’ worth:

First of all, a quick and unnecessary defense of Rochelle. We’ve known a whole array of prosecutors in our time, and Rochelle was one of the good ones. There certainly are prosecutors out there who are so misguided as to believe that their job — we kid you not — is to fight to convict anyone the cops bring in. We once walked out of an interview (with Dade County) where that exact philosophy was espoused. And there are plenty others who just put in their time to do a workmanlike job, without pushing themselves too hard one way or the other. But there are a significant number who truly believe their job is to achieve a just outcome, taking everything into consideration. Rochelle always struck us as being one of the latter.

And yet her bullshit meter seems not to have been working properly for nearly 18 years. What gives?

Speaking for ourselves, we like to think our own B.S. meter was working just fine — at least a lot of the time. We pissed off a lot of cops in our day. And there are some ex-cops who probably still rue the day that they lied to us. But there’s no way our B.S. meter was on all the time. It’s impossible.

We worked with a lot of the same detectives, over and over. You get to know the teams pretty well. They’re almost friends, some of them. You learn which ones are straight arrows, which ones are clowns, which ones are unscrupulous or lazy, and which ones are just along for the ride. You learn that most of them are happily gaming the system to make as much overtime as possible. You also learn that most of them couldn’t care less whether someone gets convicted after the arrest is written up. And hopefully you’re able to listen to each individual with the appropriate level of disbelief.

But when you’ve worked with someone for a while, and gotten to know them, it’s natural to let your guard down. How skeptical are you likely to be of someone who’s been pretty straight with you for as long as you’ve known them? And even if you do retain some skepticism, so what? There has to be a reason to suspect that the facts are not what you’re being told, and most of the time there’s no reason to do so.

Part of this is the randomness of real life. Maybe there’s a little detail that’s not right — or perhaps too right. But that’s life. The truth is rarely ideal. So it’s not easy to tell when any particular glitch in the matrix is a clue to something more sinister.

Part of this is the sheer routineness of drug cases. There are only so many ways these crimes happen, and the facts don’t vary too much from case to case. When the story you just heard happens to fit the pattern of the past thousand cases you’ve handled, it would be strange to be skeptical.

So even with a fully-functioning B.S. meter, there’s no way you’re going to catch everything. You just do the best you can.

The irony is that, the longer one serves, even as one’s knowledge of street reality grows from rookie ignorance to near-expert mastery, one’s ability to sense bullshit decreases dramatically, for all the reasons just mentioned. You’ve known the cops forever, you’ve handled this same kind of case countless times before, and the story just rings true.

This is where we defense attorneys have an obligation.

I’ll give my defender readers a moment to recover. Yes, I actually suggested that we are obliged to do something here.

You okay? Good. Yes, we defense attorneys have an absolute duty to ensure that prosecutors are given all the tools necessary to flush out the bullshit. This isn’t burden-shifting, it’s an imperative of our role.

For street crimes, the only facts an ADA or AUSA has in any given case are those provided by the cops or agents involved. If those facts fit together, there is no reason to believe the truth is otherwise.

It is so rare as to be remarkable for a defense attorney to come to a prosecutor with new facts, or a new way of looking at the facts. But most of the time, whenever it happened to us or we’ve done it ourselves, it was most assuredly worth it.

In any given case, the prosecutor has already made up his or her mind about guilt, innocence, and the appropriate plea, based on the facts provided by the cops. No amount of whining or cajoling or begging is going to change their mind. And yet that is precisely the idiotic strategy used by so many defenders out there. The only way to change someone’s conclusions is to present new facts that change the conclusion.

This isn’t burden-shifting, it’s a defender’s duty. Our job is to protect our clients, period. If the prosecutor is holding all the cards, and is going to make the biggest decision of our client’s life, we need to do what we can to make sure the right decision is made. We have an obligation to extract from our (yes, probably unwilling) client and other witnesses the facts that will make a difference.

And you know what? When a defense attorney came to us with new facts, or a new way of looking at them, we listened. We didn’t listen to the whiners, but we did listen to those who truly advocated, who had something we needed to hear. And more often than not, at least in our experience, such advocacy resulted in a dramatically improved outcome for the defendant. We were known to even dismiss indictments, if the new facts warranted.

* * * * *

We can’t end this without revealing a dirty secret, however. Prosecutors are only human, after all, and even the best are subject to incentives that reduce the likelihood that their bullshit meter is on full power.

Some people just want to be liked, and so they go along with whatever the cops tell them. These people are patsies and pushovers, and tend not to last long as prosecutors.

Some people befriend the cops, and so become not the advocates of the People, but of the officers. They go to bat for their cops — and yes, “their” cops is how they’d phrase it — even against the cops’ own supervisors. Friendship and loyalty are powerful human traits, and it’s the exceptional person who can act in spite of, rather than in keeping with, such emotional forces.

And some people are ambitious. A prosecutor without ambition is something of an oddity, and one is never quite sure about them. Ambitious prosecutors want good cases. They want big cases. They want that one case that makes them feel like they’re actually making a difference, and not just holding back the tide with a teaspoon.

Well, the big cases don’t just land in your lap. They are brought to you. And they are brought to you by the cops. And the cops won’t bring them to you unless they like you, feel like they can work with you, and trust you do prosecute the case the way they’d want it to be prosecuted.

Are the cops going to bring their big cases and investigations to the ADA who’s always giving them a hard time? The ADA who busts their balls over every little glitch? The ADA who doesn’t go to bat for that RDO overtime once in a while? Hardly.

So this is a real, albeit unspoken incentive. (Actually, it’s not unspoken. We were told this plainly and clearly by multiple prosecutors and cops during our time with Special Narcotics. Sometimes as a warning of what to watch out for, but also sometimes as instructions on how to act if we wanted to start getting those juicy investigations.)

So an ambitious prosecutor has an incentive to act in such a way as to increase the chances of bagging the big cases. Does that mean such prosecutors are necessarily turning off their B.S. meters? That they’re consciously avoiding knowledge of the truth, or knowingly deciding not to challenge the story they’re getting. No, not at all.

It’s not a conscious process. It’s a perfectly human, unconscious thing. The decision is probably not passing through the frontal lobes. It just happens that way.

* * * * *

So there are all kinds of reasons — some justifiable, some not — for prosecutors to believe tales told by cops that may not be exactly truthful.

Knowing this to be the case, what should we defense attorneys do about it? Should we throw up our hands and bemoan the injustice of it all? That wouldn’t accomplish anything. Should we fight to change the system, so that it minimizes the inevitable injustices occasioned by its administration by human beings? Of course, and that’s been the role of our jurisprudence since Magna Carta, but it’s hardly useful on a case-by-case basis.

What we need to do is acknowledge that this is a phenomenon that occurs. That there are reasons why it occurs. And then take the necessary action on our own part to minimize the injustice. If we have facts that the prosecutor ought to know, then share them! Better to persuade one lawyer now than to hold on to the facts and seek to persuade twelve random jurors a year from now. If we have a perspective about what the facts mean, then persuade the prosecutor. Don’t whine or plead, just make a rational argument from shared principles. It works often enough.

And if push comes to shove, and you have a fight on your hands, then goddammit fight. But don’t just complain that the system is unfair.

Good defense attorneys like Scott Greenfield get this. Good prosecutors get it, too.

In a solid 7-2 decision this morning, the Supreme Court ruled that jurors in a RICO case can infer the existence of a racketeering enterprise simply based on its activity, and don’t need evidence of any separate structure or hierarchy.

This clears up some misconceptions that have been floating around for a while about what the RICO statute actually says. We’ve always thought that the language was fairly straightforward, but have been amazed at the variety of interpretations we’ve heard from prosecutors, defense attorneys and judges.

Writing for the majority in Boyle v. United States, Justice Alito ruled that an enterprise must have a structure of some kind, but not necessarily one that is separate and distinct from that “inherent in the pattern of racketeering activity in which it engages.”

Boyd was one of several people who took part in dozens of bank robberies across several states in the early 1990s. There was a “core group” of conspirators, and others would be brought in as needed. The crimes followed a pattern, but the offenders weren’t formally organized. It was a loose and informal association, without any hierarchy or long-term arrangement.

At trial, Boyd’s judge told the jurors that the government had to prove the existence of a RICO enterprise by proving that:

(1) There [was] an ongoing organization with some sort of framework — formal or informal — for carrying out its objectives; and

(2) The various members and associates of the association function[ed] as a continuing unit to achieve a common purpose.”

The judge also told the jury that it could:

find an enterprise where an association of individuals, without structural hierarchy, [had been formed] solely for the purpose of carrying out a pattern of racketeering acts;

[and that]

Common sense suggests that the existence of an association-in-fact is oftentimes more readily proven by what it does, rather than by abstract analysis of its structure.

Hewing to a common misconception about what RICO requires, Boyd’s counsel wanted instead an instruction that the government had to prove that the enterprise had:

a) An ongoing organization;

b) A core membership that functioned as a continuing unit; and

c) An ascertainable structural hierarchy distinct from the charged predicate acts.

But the judge’s instruction came almost straight out of the Supreme Court’s decision in U.S. v. Turkette, 452 U.S. 576 (1981), which held that “an enterprise includes any union or group of individuals associated in fact,” and that RICO targets “a group of persons associated together for a common purpose of engaging in a course of conduct.” Such an enterprise could be “proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.”

The newly-clarified rule of this case is that:

(1) An enterprise must have a structure. This essentially means that there have to be different parts that make up the whole, as well as a pattern of relationships among the members of the group.

An association-in-fact enterprise (one that exists without having been formally established as a legal entity) must have at least three structural features (though the word “structure” is not necessary in jury instructions). These features are: (1) A purpose; (2) Relationships among those associated with the enterprise; and (3) Longevity sufficient to permit the associates to pursue the enterprise’s purpose.

There is no requirement that a structure must have a hierarchy. Nor need there be role differentiation, a unique modus operandi, a chain of command, professionalism and sophistication of organization, diversity and complexity of crimes, membership dues, membership rules and regulations, uncharged or additional crimes aside from predicate acts, an internal discipline mechanism, regular meetings regarding enterprise affairs, an enterprise name, or induction/initiation ceremonies and rituals. All that is required is a continuing unit that functions with a common purpose, no more.

(2) It is redundant and misleading to require a jury to find the existence of an “ascertainable structure.” If a jury finds that there was a structure beyond a reasonable doubt, then of course it was ascertainable, because they found it. Requiring this extra verbiage implies that the structure be something more than what is required.

(3) The existence of an enterprise is, of course, a separate element to be proved. That does not mean, however, that the existence of the enterprise must be separate from the racketeering activity in which it engaged.

This stuff isn’t rocket science. It’s not even Logic 101. But we’ve heard prosecutors, judges and defense counsel mangle this often enough that the Court’s clarification today is refreshing.

* * * * *

Speaking of mangling, however, two Justices did dissent. Stevens was joined by Breyer in opining that an “enterprise” refers only to “business-like entities that have an existence apart from the predicate acts committed by their employees or associates.”

This is the most common of the misconceptions we’ve come across regarding RICO. Still, it is surprising to hear it come from two such respected jurists. We think Stevens and Breyer do know better.

Stevens has been doing a lot of forceful dissenting in this term, and that has long led us to believe he’s putting the finishing touches on his legacy before retirement. If anyone had announced their retirement this term, we’d have certainly expected Stevens rather than Souter, for this reason alone. We still believe, however, that he’s preparing for retirement, and wants to get his jurisprudence out there.

On this matter, however, we don’t see this particular dissent coming back to form the basis of a new rule somewhere down the road. He focuses on an interpretation of Congress’ intent when it drafted the statute, an interpretation that is dubious at best. And he makes the unfortunate mistake of conflation: the existence of an enterprise is a separate element of the offense, and so therefore the enterprise must exist separately from its activities.

In other words, an enterprise that does nothing else but work to achieve its criminal ends cannot be a RICO enterprise. That’s just absurd. And that is certainly not what Congress intended.

In a decision sure to be fought before the 9th Circuit, a federal judge in the Eastern District of California yesterday upheld mandatory DNA collection from people merely arrested for federal felonies, regardless of the nature of the crime charged.

Obviously, this raises eyebrows in certain circles. Taking DNA from people who haven’t even been convicted yet? Taking DNA from people who aren’t suspected of committing crimes where DNA would even be relevant? Doesn’t this violate basic principles of our jurisprudence?

Well… and this is a defense attorney talking here… no.

The case is U.S. v. Pool, decided by Judge Gregory G. Hollows. The defendant was charged with possession of child porn, and was released on bond. One of the conditions of release was that he provide a DNA sample.

This requirement was mandatory under two federal laws: the Bail Reform Act, 18 U.S.C. § 3142(b) and (c)(1)(A), which mandates it for pre-trial release; and the DNA Fingerprinting Act of 2005, 42 U.S.C. § 14135a, which mandates it for everyone arrested on a federal felony charge.

DNA is usually collected by dabbing a cotton swab in the person’s mouth or something similar. Rarely, it is collected by a blood test. The DNA is to be used solely by law enforcement for identification purposes.

Pool argued that this warrantless DNA sampling violates the Fourth Amendment. It’s a search, there’s no warrant, and there’s no special need for the testing for nonviolent arrestees.

Judge Hollows rejected that argument, stating that every Circuit to consider the issue has held there to be no Fourth Amendment violation here, and that the criterion is not “special need” but rather the “totality of the circumstances.” The reasonableness “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”

Pool argued that pre-conviction sampling is improper, based on the Supreme Court cases Ferguson v. City of Charleston, 532 U.S. 67 (2001)(unconstitutional search for law enforcement to use hospital’s diagnostic test of pregnant patient to obtain evidence of drug use), and City of Indianapolis v. Edmond, 531 U.S. 32 (2000)(vehicle checkpoint unconstitutional when primary purpose was to detect evidence of drug trafficking). Those cases relied on the “special need” analysis he suggested.

Judge Hollows rejected that as well, as those searches involved police fishing for evidence, before anyone was formally charged with a crime. The statutes at issue here subject people to DNA testing after a finding of probable cause by a judge or grand jury. After someone’s been indicted, courts can impose all kinds of restrictions on liberty. The situation is much more like that of people who have been convicted, than of people who have not yet been charged with anything, and so the “totality of the circumstances” test is more appropriate.

For more than 45 years, it’s been well-settled that someone who’s been arrested has a diminished expectation of privacy in his own identity. He can be compelled to give fingerprints, have his mug shot taken, and give ID information. DNA is no different than fingerprints — a unique identifier that helps law enforcement find the right suspect, and eliminate the wrong suspect. In fact, DNA is more precise than photos or fingerprints, so the government interest in obtaining it is even stronger.

Meanwhile, the invasiveness is minimal. Even blood tests are considered “commonplace, safe, and do not constitute an unduly extensive imposition on an individual’s privacy and bodily integrity.” Oral swabs are considered no more physically invasive than taking fingerprints.

The judge also rejected arguments that DNA evidence, once taken, might possibly be stolen and put to an impermissible use. That risk applies to everything, and there are criminal penalties to deter it. Just because someone might break the law doesn’t mean the setup is improper.

Judge Hollows pointed out that all the same concerns being raised about DNA were raised in the early part of the 20th Century with respect to fingerprints. And since at least 1932 it’s been understood that the public interest far outweighs the minimal burden to the individual being fingerprinted. The same reasons that justify post-arrest fingerprinting without a warrant justify post-arrest DNA sampling without a warrant.

Pool also argued that this violates Fifth Amendment procedural due process, because it’s mandatory, and thus precludes an opportunity to be heard. But that only applies if the defendant’s privacy rights outweigh the government interest, and it’s the other way around here. Pool argued that there is a risk of erroneous deprivation of his privacy interest, for arrestees who are not ultimately convicted. But the system is set up to expunge DNA records if the person is exonerated or the charges are dismissed. So the risks are minimal, and the government interests are compelling, and that means there is no procedural due process problem.

Pool also argued that this violates the Eighth Amendment protection against excessive bail. Bail conditions have to be proportionate to the perceived government need requiring the condition. But the Supreme Court case that set this rule, U.S. v. Salerno, 481 U.S. 739 (1987), specifically rejected any idea that this “categorically prohibits the government from pursuing other admittedly compelling interests through regulation of pretrial release.” This being nothing more than a booking procedure, and not comparable to conditions of release that actually have to do with the concerns arising from letting someone out on bail, there’s no reason to consider it excessive.

Pool also argued that the statutes violate the Separation of Powers, as Congress has intruded on judicial decision-making in the setting of bail conditions. But here, Congress didn’t direct any judicial findings. It merely directs what the judge needs to do after a certain finding has been made. That’s what Congress is supposed to do. There’s no problem there.

Poole finally argued that this is an unconstitutional extension of power, because the Commerce Clause doesn’t authorize DNA sampling. But the Commerce Clause lets the government make conduct a federal crime. The resulting government powers, such as incarceration and terms of release, have nothing to do with it, and don’t need to be independently authorized under the Commerce Clause.

* * * * *

What to make of this?

Pool’s arguments stem from a presumption that a person out on bail is more like a pre-arrest suspect. Judge Hollows’ decision stems from the opposite conclusion, that a person out on bail is more like a person on post-conviction supervised release. Any arguments before the 9th Circuit will have to focus on which it is, and we are inclined to believe that the Circuit will side with Judge Hollows here.

Central to the distinction is the fact that there has already been a judicial determination here, separating the defendant from the class of unarrested individuals. Either a judge or a jury has found that it is more likely than not that a federal felony was committed, and that this person did it. Once that has happened, a person’s rights are substantially changed. Society has an interest in ensuring that they come back to court to be judged. Society has an interest in ensuring that they don’t cause more harm in the meantime. These interests outweigh a defendant’s interests in liberty and property, to varying degree depending on the individual. That’s why we have bail and bail conditions.

What is odd, however, is that Congress made DNA sampling a mandatory bail condition, when it has nothing to do with pre-trial release.

Judge Hollows correctly points out that, conceptually, DNA sampling is no more invasive than fingerprinting, and is used for the same purposes. It’s a booking procedure, not a release consideration. Congress could just as easily have made DNA sampling a mandatory part of post-arrest processing, along with the mug shot and fingerprints. It would have been just as constitutionally sound.

By calling it something that it’s not, Congress subjected DNA sampling to this exact challenge.

Now, the ACLU differs with us, and calls the ruling “an incredible threat to civil liberties.”

“We think this ruling is incorrect,” ACLU attorney Michael Risher told reporters. “It ignores the presumption of innocence and it does not pay enough attention to the protections of the Fourth Amendment.” He also opined that police now have an incentive to make pretext arrests, just to get people’s DNA to help them solve crimes. How this changes things from the already-existing incentive to make pretext arrests to get fingerprints is unclear to this defense attorney. And anyway, police don’t need to arrest someone to get DNA or fingerprints — they can be collected by pretext in any number of ways, without a warrant, and often are.

With respect to the Fourth Amendment, what is clear here is that this is not a search for evidence. The crime has already been charged. It’s very clearly an administrative tool for establishing the identity of the defendant. Evidentiary consequences are merely hypothetical, if the person should somehow commit a violent crime in the future and leave behind DNA that gets compared to the database. That’s no different from mug shots, and unlike mug shots (where the chances of a false positive are unreasonably and embarrassingly high, given their variety and the innate unreliability of eyewitness recognition) DNA has an insignificant risk of identifying the wrong person. Mug shots aren’t a Fourth Amendment issue, neither are fingerprints, and neither is DNA, really.

* * * * *

One issue, however, is when the DNA is being taken for the purpose of gathering evidence, in the investigation of a crime.

That’s not the case here, and it’s sort of off point, but should a warrant even be involved then?

Well, isn’t it a Fifth Amendment violation then? You’re making someone incriminate himself against his will, right?

Wrong. Self-incrimination doesn’t enter into it, because what’s important there, the underlying policy of the right, is that we don’t want the government overriding people’s free will, and making them convict themselves out of their own mouths. We don’t want another Star Chamber. We don’t want the government using its overwhelming power to extort unwilling confessions, whether by thumbscrews, lead pipes, or simple custodial interrogation.

But taking blood samples has been held not to involve the right against compelled self-incrimination. Nobody’s being forced to say “I did it.” All they are being forced to do is provide physical evidence. There is no free will involved in the creation of that physical evidence — it exists whether the person wants to hand it over or not — but there is free will involved in the creation of confessions and incriminating statements.

But that brings us back to the Fourth Amendment. If someone is being compelled to give a swab or blood sample, then the government is seizing pre-existing evidence just as if they were seizing drugs from someone’s home. So shouldn’t a warrant be required after all?

Yes it should. But that’s only when the evidence is being sought as evidence. Constitutional rights really do depend on what’s going on. An administrative requirement is not the same thing as a criminal investigation. A DNA sample for administrative ID purposes is not the same thing as one taken to identify a potential suspect.

That’s the big difference here. And even given the 9th Circuit’s pro-defendant tendencies from time to time, we have a hard time predicting anything but an affirmation of Judge Hollows’ decision when this comes up on appeal.

The Supreme Court ruled this morning that a confession obtained in violation of the 6th Amendment right to counsel is still admissible on cross-examination to impeach a defendant who testified that someone else did it.

Writing for the 7-2 majority in Kansas v. Ventris today was the always-entertaining Justice Scalia. He summed up the facts more pithily that we could, and we’re keen to see if we can figure out to insert block quotes, so here’s Scalia’s summary:

In the early hours of January 7, 2004, after two days of no sleep and some drug use, Rhonda Theel and respondent Donnie Ray Ventris reached an ill-conceived agreement to confront Ernest Hicks in his home. The couple testified that the aim of the visit was simply to investigate rumors that Hicks abused children, but the couple may have been inspired by the potential for financial gain: Theel had recently learned that Hicks carried large amounts of cash.

The encounter did not end well. One or both of the pair shot and killed Hicks with shots from a .38-caliber revolver, and the companions drove off in Hicks’s truck with approximately $300 of his money and his cell phone. On receiving a tip from two friends of the couple who had helped transport them to Hicks’s home, officers arrested Ventris and Theel and charged them with various crimes, chief among them murder and aggravated robbery. The State dropped the murder charge against Theel in exchange for her guilty plea to the robbery charge and her testimony identifying Ventris as the shooter.

Prior to trial, officers planted an informant in Ventris’s holding cell, instructing him to “keep [his] ear open and listen” for incriminating statements. App. 146. According to the informant, in response to his statement that Ventris appeared to have “something more serious weighing in on his mind,” Ventris divulged that “[h]e’d shot this man in his head and in his chest” and taken “his keys, his wallet, about $350.00, and . . . a vehicle.” Id., at 154, 150.

At trial, Ventris took the stand and blamed the robbery and shooting entirely on Theel. The government sought to call the informant, to testify to Ventris’s prior contradictory statement; Ventris objected. The State conceded that there was “probably a violation” of Ventris’s Sixth Amendment right to counsel but nonetheless argued that the statement was admissible for impeachment purposes because the violation “doesn’t give the Defendant . . . a license to just get on the stand and lie.” Id., at 143. The trial court agreed and allowed the informant’s testimony, but instructed the jury to “consider with caution” all testimony given in exchange for benefits from the State. Id., at 30. The jury ultimately acquitted Ventris of felony murder and misdemeanor theft but returned a guilty verdict on the aggravated burglary and aggravated robbery counts.

The Kansas Supreme Court reversed the conviction, holding that “[o]nce a criminal prosecution has commenced, the defendant’s statements made to an undercover informant surreptitiously acting as an agent for theState are not admissible at trial for any reason, including the impeachment of the defendant’s testimony.”

In his decision this morning, Scalia pointed out that the exclusionary rule is applied differently, depending on the rights that were violated. The Fifth Amendment’s protection from compelled self-incrimination is enforced with an absolute exclusion — the overriding of an individual’s free will and extraction of a confession is so heinous, that the confession cannot be used either in the prosecution’s case-in-chief, nor in rebuttal, nor for impeachment. The exclusionary rule there is used to prevent violations of the right. On the other hand, the exclusionary rule is not automatic in the Fourth Amendment search-and-seizure context, nor is it absolute, but can instead be used to rebut and impeach the defendant’s testimony.

With respect to the Sixth Amendment, when there is a pretrial interrogation of a defendant — after the defendant has been formally charged — the defendant has the right to have a lawyer present. Apart from that, it only guarantees a right to counsel at trial. The reason why there’s a right to counsel at the interrogation stage is because interrogation is a critical stage of the prosecution.

Let’s stop there for a second to point out that this is an odd presumption. It’s odd in that the only interest at stake is the defendant’s interest in beating the rap. We’re not talking about coerced confessions here. The reason for this rule cannot be that we want a witness to the confession, a defense lawyer who can confirm whether it was voluntary or not. Because the attorney can’t testify, and he isn’t likely to be believed in the first place, because he’s interested in protecting his client.

The effect is to stop confessions that otherwise would have been freely made, by requiring counsel whose real purpose is to tell the defendant to shut up. The obvious problem is that, if a lawyer was present, then that would make the police acts even more offensive, violating or infringing on attorney-client confidentiality, which would be even more violative of the Sixth Amendment’s right to counsel. Frankly, when the Supreme Court carved out this rule in Massiah, Brewer, etc. they were fighting a non-existent Sixth Amendment problem while ignoring the actual underlying Fourth Amendment problem.

But we digress.

Scalia, too, has problems with Massiah, calling it “equivocal on what precisely constituted the violation. It quoted various authorities indicating that the violation occurred at the moment of the postindictment interrogation because such questioning ‘contravenes the basic dictates of fairness in the conduct of criminal causes.’ But the opinion later suggested that the violation occurred only when the improperly obtained evidence was ‘used against [the defendant] at his trial.’”

Nevertheless, Scalia had no problem deciding that “the Massiah right is a right to be free of uncounseled interrogation, and is infringed at the time of the interrogation.”

So far, so good. Everyone now agrees that there was in fact a Sixth Amendment violation here. The issue now is whether the fruits of that violation must be excluded absolutely, as with a Fifth Amendment violation, or only kept out of the case on direct, as with the Fourth.

In this situation, Scalia argued, the purpose of exclusion would not be prevention of the violation, as it is with the Fifth Amendment. Instead, the purpose would be to remedy a violation that has already occurred, as with the Fourth.

When that is the purpose, there is strong precedent that such excluded evidence is allowed for impeachment. The defendant’s interests are outweighed by the need to prevent perjury, and by the need to ensure the integrity of the trial process. Although the government cannot make an affirmative use of evidence unlawfully obtained, that doesn’t mean the defendant can shield himself against contradiction of his untruths.

Therefore, once a defendant has testified contrary to his excluded statement, the excluded statement is admissible on cross or in rebuttal. “Denying the prosecution the use of ‘the traditional truth-testing devices of the adversary process’ is a high price to pay for vindication of the right to counsel at the prior stage.”

If the rule were any different, Scalia added, if the statements were absolutely excluded, there would be no extra deterrent effect. The odds that any given defendant will actually testify at trial are very small. The odds that he would then testify differently — knowing that the statement would be admissible for impeachment — are even smaller. So letting this come in for impeachment is not going to cause any cops to play games, and get excludable statements in the hopes of using them for impeachment later.

The Supreme Court this morning exemplified exactly what’s wrong with the death penalty in this country. In a clear effort to avoid a decision that would impose a death sentence, the Court made a nonsense ruling so it could extend the course of appeals — appeals that have already run for three decades. The Court further delayed an outcome, continuing the stress and injustice of uncertainty to the defendant, the victims, and the criminal justice system.

One Saturday afternoon in 1980, Gary Cone robbed a Memphis jewelry store of about $112,000 worth of trinkets. He led a police officer on a high-speed chase through town and into a residential neighborhood. Abandoning his car, he ran off on foot. He shot a police officer who pursued him, and a citizen who tried to stop him. Re-thinking his abandonment of the getaway car, he tried his hand at carjacking, tried to shoot the driver, but was out of ammo.

Cone ran and hid all that day and into the next morning. He then tried to force his way into an old lady’s apartment at gunpoint, but she refused to let him in. The highly-intelligent Vietnam War veteran was foiled again. But later that Sunday afternoon, he broke into the home of an elderly couple, Shipley and Cleopatra Todd, aged 93 and 79, and brutally beat them to death.

After hiding the bodies, ransacking their home, and shaving off his beard, he made his way to Florida. There, he robbed a drugstore, got arrested, and admitted to killing the Todds and shooting the police officer.

In 1982, he was convicted of the murders, after unsuccessfully arguing that he had been on drugs and suffered from post-traumatic stress, and thus lacked the necessary mens rea. He didn’t really present a lot of evidence to back that up. The jury found him guilty, found the requisite aggravating factors, and sentenced him to death.

In yet another bleak example of modern American capital punishment, Cone spent the next 27 years filing appeal after appeal, up to the Supreme Court and back again.

This morning, the Supreme Court ruled on his federal habeas claim. Cone was arguing that the government violated his Brady rights, by withholding evidence material to his mental state.

On direct review in state court, the Tennessee Supreme Court had affirmed the conviction and the death sentence. Cone then filed a petition claiming various violations, including Brady violations. While the petition was pending, he got to see the prosecutor’s case file, and amended his petition to add more detailed Brady claims. He claimed that his thin evidence at trial would have been bolstered by this stuff, had he seen it at the time.

The reviewing court denied the petition, on the grounds that the Brady claims had already been considered and denied. Cone then sought a writ of habeas corpus, seeking relief for the alleged Brady violation. The Sixth Circuit said no to the Brady claim, because the state decision was based on grounds that weren’t applicable in federal court.

Appeals then went back and forth on other matters. In 2001, the Circuit granted relief for ineffective assistance of counsel, but the Supreme Court reversed that in 2002. In 2004, the Circuit granted relief for the use of an unconstitutional aggravating factor, but the Supreme Court reversed that one also.

Back in the Sixth Circuit in 2007 on remand, Cone once again raised the Brady claim. The Circuit again said no, that the claim was procedurally barred, because Tennessee had relied on independent state grounds in its determination of the Brady claim. And in any event, the prosecutor’s files weren’t Brady material in the first place, because nothing in them would have “overcome the overwhelming evidence of Cone’s guilt” and “the persuasive testimony that Cone was not under the influence of drugs.”

On cert to the Supreme Court this time around, Cone argued that the prosecutor’s file contained witness statements and police reports that would have corroborated his insanity defense during the guilt phase, and would have mitigated the aggravating factors during the sentencing phase. He argued that the Tennessee court’s decision did not rest on grounds that precluded federal review, contrary to the Circuit’s finding.

In its decision this morning, written for the majority by Justice Stevens, the Supreme Court ruled in Cone v. Bell that Cone was right — the Tennessee court’s decision did not rest on grounds that precluded federal review. Nevertheless, Cone was still wrong, because the prosecution’s files were not Brady material — the withheld documents simply were not material to any defense based on his mental state.

If Stevens had stopped there, this would have been a unanimous decision.

Instead, however, Stevens screwed up. “While we agree that the withheld documents were not material to the question whether Cone committed murder with the requisite mental state,” he wrote, “the lower courts failed to adequately consider whether that same evidence was material to Cone’s sentence.”

Say what? It clearly wasn’t material to the issue of guilt, but the appellate courts were too hasty in saying it was not material for sentencing? Stevens is basically saying, the files weren’t Brady, because they weren’t material to the issue of his mental state. But on the other hand, they might have been material to the issue of his mental state, so we’re remanding for a do-over.

So, in all these years of considering this very issue on appeal, the Circuit got it right when it decided that the files simply weren’t material. But in all these years of considering this very issue, the Circuit acted too hastily in deciding that the files weren’t material.

That simply doesn’t make sense, and in his dissent (joined by Scalia), Thomas makes that exact point. Alito felt the same way, and dissented to that extent, but concurred with the rest of the decision.

Chief Justice Roberts felt the same way, but wasn’t moved strongly enough to dissent, so he merely wrote a concurring opinion voicing his concerns. Instead, “this is what we are left with,” he wrote: “a fact-specific determination, under the established legal standard, viewing the unique facts in favor of the defendant, that the Brady claim fails with respect to guilt, but might have merit as to sentencing. In light of all this, I see no reason to quarrel with the Court’s ruling on the Brady claim.

That’s just weak. He and the rest of the majority clearly punted the issue. There is no distinguishing difference between the guilt phase or the sentencing phase, when determining whether something was Brady or not. Either it’s material or it isn’t. The issue in both was whether Cone’s mental state was impaired, and the courts seem to agree that the files were immaterial to that issue.

It’s clear what’s really going on, of course: the majority didn’t want to suck it up and just deny the claim. To do so would be to impose a death sentence, and the Stevens majority doesn’t want to do that unless there’s no way out for them. But they found a way out here. Not a particularly meaningful one, but it was all they needed. So they weaseled out of it, and kicked it back to the Sixth Circuit to do their dirty work for them.

We predict that the Circuit will simply make the same finding again on remand, and spill some more ink to spell out that its finding applies to both the sentencing phase as well as the guilt phase. Then today’s majority will be able to feel a little better about themselves when they affirm, and sentence Cone to death.

But delaying this foregone conclusion is unjust. It’s exactly what’s wrong with capital punishment in this country. There is no deterrent effect, because there is no predictability as to whether capital punishment will be carried out, and any such punishment is too far off in the dim and distant future to be meaningful. There is clearly no rehabilitation or attempt to rehabilitate, as the alternative is just life in prison. There is no just retribution, as society does not gain anything from punishment that neither certain nor contemporaneous.

Until the courts can work out a fair way of resolving death-penalty appeals justly and swiftly, the death penalty will continue to be an inhumane sentence in this country. Inhumane not only to defendants, but to the families of their victims, and to the community at large.

We admit it: we like to skip to the Scalia dissent.

Not because we necessarily agree with his philosophy of jurisprudence. But because it’s a good bet to be an entertaining read. Whether he’s dissenting from an expansive activist or a fellow limited-role jurist, he’s good for a bit of snark while mercilessly pointing out flaws and internal inconsistencies in the other fellow’s opinion.

So when we saw that Alito, and not Scalia, wrote the dissent in this morning’s Corley v. United States decision on the exclusion of statements, we sighed a little and took in the majority opinion first.

Well, we learned our lesson. Alito can give good dissent.

At issue is 18 U.S.C. § 3501. The statute was passed by Congress back in the 60s, in an attempt to undo some of the aggressive jurisprudence of the Warren Court. Particularly, Congress was trying to nullify the Court’s perceived expansion of the Exclusionary Rule with respect to statements. Miranda made statements inadmissible if suspects weren’t advised of their rights before custodial interrogation, and McNabb and Mallory excluded confessions during extended detention prior to arraignment. §3501(a) tried to nullify Miranda by saying that, notwithstanding any warnings, if the statement was voluntary, then it was admissible. §3501(c) similarly said that custodial confessions weren’t automatically inadmissible because of delay, if they were voluntary. Congress flatly said that voluntary statements were going to be admissible.

Now, all this shows is that Congress didn’t understand Miranda or the McNabb-Mallory rule. At heart behind both rules is the concept of voluntariness. If someone voluntarily inculpated themselves, then the Court has never had a problem with admitting that statement into evidence. The only thing that the Court has ever had a problem with — no matter who was on the bench — is involuntary statements being used against people.

Seriously, the single policy that explains all of the Supreme Court’s jurisprudence on the exclusion of statement evidence is this: “We won’t allow the government to convict somebody by overriding that person’s free will.”

So if the defendant was forced to incriminate himself out of his own mouth, then we won’t let that in. We won’t let the government beat confessions out of suspects, and this is all of a piece.

By the same token, we have no problem with taking blood or DNA samples without the suspect’s permission, because we’re not forcing him to convict himself. We’re just taking already-existing physical evidence, not forcing the suspect to create evidence to be used against him.

Hence the rule of Miranda and its progeny: If a reasonable person wouldn’t feel free to leave, and he’s being quizzed by the government, then incriminating response is by definition involuntary. The only way the government can cure that is to make sure the suspect knew his rights against self-incrimination, and knowingly waived those rights.

And hence the rule of McNabb-Mallory: The longer you’re being held by the government without being informed of the charges against you, the less likely anything you say will be voluntary. At some point, your statement is going to be by definition involuntary, unless the government has taken some affirmative action to ensure it really was voluntary.

Given this, §3501 is really a dead letter. Oh, there have been those who argue that its effect is what Congress intended, the nullification of the case law (see, e.g., U.S. v. Dickerson, 166 F.3d 667 (4th Cir. 1999)). But all §3501 says is that, if a statement was really voluntary, then it is admissible. And that is precisely what the case law also says.

So we come to today’s case, Corley v. U.S. The decision was 5-4, split right down the (jurisprudentially) liberal/conservative line. Souter wrote for the majority, joined by Stevens, Kennedy, Ginsburg and Breyer. Alito fired off the dissent, joined by Roberts, Scalia and Thomas.

And Souter — whom we like immensely — messed it up. Of all Justices, he was the one we expected to really get it, and lay out the real policy and uphold the majesty and wisdom of the law. Instead, he made a hash of it.

All he had to do is say, “yes, §3501 means what it says. But it does not do what Congress meant. The plain language of the statute does not affect our case law in the slightest.” We are willing to bet money that Scalia would have joined the majority if he had said that. And he might have taken the others with him for a Roberts-pleasing unanimous decision.

But instead, Souter said §3501 meant what it said as to Miranda, but it did not mean what it said as to McNabb-Mallory. His internally-inconsistent, self-contradictory interpretation required 18 pages of justification. At the end, he concluded that Congress didn’t mean to nullify McNabb-Mallory while trying to nullify Miranda, and so a Mirandized confession is still excludable if made during an extensive pre-presentment delay.

Souter’s reasoning was unnecessarily convoluted, and required a patchwork of equally risible arguments to fill in the obvious gaps. In dissent, Alito seems to gleefully dissect each one in turn. You just know he was grinning like a fool while writing (or directing) some of these passages. Oh sure, he tries for a veneer of objectivity with phrases like “the Court cites no authority for a canon of interpretation that favors a ‘negative implication’ of this sort over clear and express statutory language.” But that can’t conceal the snark within. Although Scalia might have had more fun with the point that “although we normally presume that Congress means in a statute what it says there, the Court today concludes that §3501(a) does not mean what it says,” it’s obvious that Alito was enjoying himself too.

Interestingly, the dissent does not disagree with the majority’s result, but only with its analysis. We really do think that if Souter had thought it through, he could have had a unanimous opinion clearing up this misunderstood line of cases for posterity.

That’s okay, we just did it for you.

For 16 years, German police have been hunting a fiendish serial killer. Every time they have an unsolved crime, the DNA of an unknown woman has been found at the scene. This phantom killer baffled police with her ability to commit totally unrelated murders without any evidence (apart from traces of her DNA) tying them together.

And when we say “unrelated,” we mean it. The DNA was found on documents at an arson scene, a cop killing, and dozens of other kinds of murders unconnected by geography, motive, means or victim.

Dubbing her “the phantom of Heilbronn,” the cops focused at least 40 investigations in Germany and Austria on identifying this “woman without a face.” When her DNA was found at the scene of a murdered policewoman, a 300,000 (about $375,000) reward was offered for information leading to her arrest.

It turns out, however, that all those unrelated crime scenes DID have something in common, apart from the mystery woman’s DNA. But in all those 16 years, nobody put two and two together.

What did they have in common? The DNA kits used by the cops themselves.

Yup, the swabs used to collect the DNA samples were contaminated. A female worker at the manufacturer apparently wasn’t working under completely sterile conditions, and her DNA was getting on the Q-Tips. As usual, the evidence that made no sense was wrong, and the simplest explanation was the right one.

So the police spent 16 years thinking that her DNA was the DNA of the killer. And instead of focusing on evidence that would have solved these crimes, they followed a wild goose chase that has left nothing but injustice. DNA is the wonder evidence of our time, so when it pointed the way the cops jumped at that conclusion.

Yet another reason why DNA evidence isn’t necessarily as damning as people might think.

In October, we reported that functional magnetic resonance imaging (better known as fMRI) is being touted as an honest-to-goodness lie detector. Unlike a polygraph, which required interpretation of physical bodily reactions, an fMRI looks at real-time brain activity to see if brain areas associated with lying are activated during any given answer.

The issue, of course, was whether such evidence would be admissible in court. Polygraphs aren’t admissible (except in New Mexico) because they’re more art than science. But fMRI is all science, and brain scans are already widely admissible at sentencing. They are now de rigeur in capital cases, and the Supreme Court based its ruling precluding execution of adolescents on brain scan evidence.

When we wrote about it, the issue was purely hypothetical. Nobody had yet tried to introduce such evidence in court. But now, a court in San Diego is going to have to decide that very issue.

The case is a child protection hearing. The defendant is a parent accused of committing sexual abuse. Defense counsel is seeking to introduce fMRI evidence for the purpose of proving that the defendant’s claims of innocence were not lies.

If admitted, this will be the first time fMRI evidence will be used in an American court.

The fMRI in this case was performed by a San Diego company with the somewhat uninspiring name “No Lie MRI.” The company’s name isn’t so much an issue, however, as the actual reliability of these tests on an individual basis.

Although general regions are known to be associated with lying, logic, decision making, etc., their specific location in each individual varies. So some baseline analysis would be required for any person, so that his brain activity during questioning can be compared to a valid exemplar of his own actual brain.

fMRI basically measures oxygen levels in the brain’s blood vessels. When a part of the brain is being used, that part of the brain gets more blood. Studies have indicated that, when someone lies, more blood is sent to the ventrolateral area of the prefrontal cortex.

Only a few studies have been done on how accurate fMRI is at identifying specific lies, though their figures range from 76% to 90% accuracy. (For more info, see Daniel Langleben’s paper Detection of Deception with fMRI: Are we there yet? Mr. Langleben owns the technology licensed by No Lie MRI.) Ed Vul of MIT’s Kanwisher Lab told Wired.com that it’s too easy to make fMRI data inaccurate, because a defendant who knows what he’s doing can game the procedure too easily.

Of course, the big challenge to the defense in this case will be establishing that fMRI lie detection is generally accepted within the relevant scientific community. As with any other novel scientific evidence, if the relevant community is defined narrowly enough, it can come in. The trick would be in determining how narrow the relevant scientific community is in this case. If it includes researchers like Mr. Vul, for example, the defense is going to have a hard time. Even Mr. Langelben, who owns the technology used here, is on record saying that not enough clinical testing has been done to establish how reliable it really is.

We predict that the evidence will not be admitted. Down the road, sure, this stuff will come in on both sides. But right now it’s too new. Courts just don’t go out on a limb for truly novel evidence like this.

And besides, they’re trying to admit it to prove the truth of the defendant’s own statement. The issue is not whether he was lying when he declared that he believed himself to be innocent, however. The issue is whether he committed the acts of which he is accused. Whether he thinks he did or not isn’t really the point. It might be relevant at the sentencing phase of a criminal trial, but not at the fact-finding phase here.

“Google mistrials” are in the news again. Every few years, we hear about mistrials being declared because jurors were caught researching the facts online. It’s not a new phenomenon — there have always been jurors who felt the urge to find out for themselves what really happened — all that’s new is how easy the Internet makes it. And even Google mistrials have been happening for many years.

Jurors naturally want to investigate on their own. It’s normal. After all, the whole purpose of a jury is to arrive at an official version of the facts, jurors do take this job seriously, and they commonly feel hamstrung by rules of evidence that keep them from seeing the whole picture. Taking the initiative can be thought of as a means to achieving true justice. Such initiative is even the major plot device of that old classic “Twelve Angry Men,” commonly seen as a drama that epitomizes true justice.

The justice system, on the other hand, has evolved over the centuries to ensure justice in quite a different way. Instead of allowing trial juries to investigate the facts, the courts carefully limit the facts to which juries are exposed. Before being spoon-fed to the jurors, facts must first be sifted through rules of admissibility, to ensure that only relevant and reliable information is made available. Then both sides in the trial get to challenge, cross-examine and argue about that evidence. This testing by fire, even if intended to obfuscate rather than clarify the facts, is generally seen as serving the higher goal of a just result.

So unlike “Twelve Angry Men,” when a juror in real life goes out into the world beyond the courtroom, and finds evidence that was not presented at trial which could affect the outcome of the case, justice is deemed to have been frustrated. A mistrial is declared, and everyone has to do it over again. The judge, jury, court employees, lawyers, witnesses and parties will have wasted their time, effort and money.

But it used to take some effort to cause such mistrials, and so they were rare. Jurors may have WANTED to go out and do some research on their own, but few had the time and resources to match their inclination. Nowadays, however, everyone is a research specialist. In everyone’s pocket is a miniature Hitchhiker’s Guide to the Galaxy, a phone or PDA with full access to the Internet. Looking up individuals, events, photos, aerial images, detailed maps, weather, weapons, forensics, public records, and practically anything else is now fast, effortless and free.

There are no obstacles to such research, and so everyone does it. And they do it all the time. It’s not a here-and-there thing like visiting a library; it’s part of the habits of people’s daily lives. The simple fact is that it is something people do naturally and routinely throughout their day. Telling someone not to go online these days is as inane as telling them they can’t talk about their day with their spouses and best friends.

Beyond simple inanity, ensuring that jurors comply with a no-Googling rule is simply unworkable in real life. Access to the Internet is ubiquitous in modern life. It’s everywhere. Unless courts are willing to confiscate all wireless devices of any sort at the courthouse, and then sequester every jury at great expense to ensure that they don’t access the web after hours, then courts are simply not going to be able to prevent Googling from happening. Jurors are going to be instructed not to do it, they’re going to do it anyway in ever-increasing numbers, and so mistrials are going to happen in ever-increasing numbers.

It’s time for modern jurisprudence to catch up to modern reality. Independent juror research simply cannot be grounds for mistrial any more.

It’s not such a stretch, by the way. We already allow jurors to take into the jury room any common knowledge and common sense they already possess. In fact, we insist on it. All that would be required of the law would be a presumption that anything available on the net is common knowledge.

That’s a simple fix, and an intellectually honest one.

What would that mean? That would mean that lawyers would have to be a little more diligent in investigating their cases. They’re going to have to presume that anything on the Internet is common knowledge. So if that common knowledge is wrong, they’re first going to have to realize it’s out there, and then debunk it.

So what? That’s what any good lawyer does now, anyway. If there’s a common perception that happens to be a mis-perception, then effective counsel will do their best to educate the jury to at the very least minimize the effects of that misperception. We do this all the time, in all sorts of cases. Prosecutors try to nullify the perception that circumstantial evidence is somehow less reliable than direct evidence. Defense attorneys try to undo the perception that an eyewitness identification is as damning as it gets. There are tons of examples for every kind of case that goes to trial.

The risk, of course, is that by attempting to debunk an attitude, one may merely highlight it to a juror who wouldn’t have otherwise have thought it. That’s the same risk we take now. We try to minimize it during jury selection, if we can. And we judge the risks and take the course we judge to be best.

In short, the law needs to accommodate modern reality by treating data commonly available as if it people were commonly aware of it. The law may already do so, and the courts just haven’t gotten around to realizing it yet. It really may be nothing more than a simple matter of re-interpretation of a longstanding rule.

So no more Google mistrials, please. Efficiency would be improved, and justice would be served.

Judge Posner issued a scathing decision yesterday for the 7th Circuit, reversing a jury’s fraud conviction and directing an acquittal. Why? Because the only fraudulent misrepresentations were those of the prosecutor.

The decision is great, and we plan to use some of it in our own future arguments. Sadly, it is just the latest in a string of recent cases where federal prosecutors — uncharacteristically — have far overstepped the bounds. We hope it’s not becoming a trend.

In U.S. v. Farinella, the government accused Farinella of fraudulently misleading consumers by slapping a new label over the “best when purchased by” date. The Justice Department alleged that this altered the dates on which “the dressing would expire.”

But the Justice Department was itself misleading when it said so. The dressing had a very long shelf life indeed — in fact, it has no expiration date. There is no time after which one shouldn’t eat it. The “best when purchased by” date was merely a marketing ploy. “For all we know,” Posner wrote, “the date is determined less by a judgment about taste than about concern with turnover.” Nevertheless, the government consistently referred to the date as the “expiration date,” routinely misleading the jury and the court.

Posner made an outstanding observation during his discussion of the government’s expert testimony. They had called an FDA employee, whose testimony strongly implied that changing food labels requires FDA approval. But though that may be the expert’s understanding, it wasn’t actually a requirement.

For it “to be a lawful predicate of a criminal conviction,” Posner wrote, it would “have to be found in some statute or regulation, or at least in some written interpretive guideline or opinion, and not just in the oral testimony of an agency employee.”

He then gave us white-collar defense attorneys a wonderfully quotable ruling: “It is a denial of due process of law to convict a person of a crime because he violated some bureaucrat’s secret understanding of the law. The idea of secret laws is repugnant. People cannot comply with laws the existence of which is concealed.”

There was no evidence of misbranding, and so the defendant had to be acquitted. However, even if there had been evidence, the Circuit would have reversed and ordered a new trial, because the Justice Department’s misconduct was beyond the pale.

As already pointed out, the prosecution repeatedly misrepresented the facts, referring to the “best when purchased by” date as the “expiration date.” In her closing argument alone, the prosecutor substituted that phrase 14 times.

The prosecutor further misled the jury when she told them that the “best when purchased by” date “allows a manufacturer to trace the product if there is a consumer complaint, if there is illness, if there is a need to recall the product.” That’s not remotely true, and there was no public safety issue with what the defendant did.

She made several more arguments hinging on implied threats to public safety: “If what he did was business as usual in the food industry, I suggest we stop going to the store right now and start growing our own food. . . . In spite of all this talk about the quality of the dressing, I don’t see them opening an of these bottles and taking a whiff. . . . [The defendant was indifferent to] safety. . . . The harm caused by the fraud was to public confidence in the safety of the food supply.” She called the still perfectly fine bottles “truckfulls of nasty, expired salad dressing.” She said that after the “expiration date” the dressing was no longer “fresh,” so the defendant “had to convert the expired dressing into new, fresh product.”

During rebuttal arguments, the prosecutor said “Ladies and gentlemen, don’t let the defendant and his high-paid lawyer buy his way out of this.” Then she went on to say “Black and white is our system of justice, ladies and gentlemen. You have to earn justice; you can’t buy it.” The implication that the defendant might be trying to bribe his way to an acquittal should have resulted in a warning of mistrial, but only resulted in sustained objections.

The Justice Department repeated its misrepresentations in its brief, using the phrase “expiration date” and hinting at public safety concerns. But the trial prosecutor’s misconduct alone was sufficient for the Circuit to order a new trial, and the only reason they didn’t do so was because there was no evidence in the first place, resulting in a directed acquittal.

“That does not detract from the gravity of the prosecutor’s misconduct and the need for an appropriate sanction,” Posner was quick to point out, however. “The government’s appellate lawyer told us that the prosecutor’s superior would give her a talking-to. We are not impressed by the suggestion.”

Posner finished his opinion with a nice kicker: “Since we are directing an acquittal on all counts, the sentencing issues are academic and we do not address them, beyond expressing our surprise that the government would complain about the leniency of the sentence for a crime it had failed to prove.”

Ouch.

We took an unexpected trip out of state until yesterday, and so haven’t had a chance to catch up on the latest in the ongoing saga involving allegations of prosecutorial misconduct in the Sen. Ted Stevens case. When last we left off, District Judge Emmet Sullivan had ordered a status hearing for last Friday, the 13th.

In Friday’s status hearing, Judge Sullivan held four DOJ lawyers in contempt, for failing to turn over 33 documents to the defense. These documents pertained to December’s whistleblower claims of FBI agent Chad Joy, which had raised concerns of prosecutorial misconduct.

The judge had ordered these documents turned over on January 21. At first, the prosecutors said the documents were protected by the work-product doctrine. But then, even though they later determined that the doctrine did not apply, they still didn’t hand them over to the defense. At the hearing, the DOJ couldn’t give a good reason for the non-production, and so the judge held the lawyers in contempt.

The contempt order was imposed against William Welch II, the chief of the Public Integrity Section of the DOJ which had prosecuted Sen. Stevens. Also held in contempt were Brenda Morris, the section’s deputy chief and the lead prosecutor at trial; Patricia Stemler, chief of the Appellate Section of the Criminal Division; and Kevin Driscoll, a trial attorney with the Public Integrity Section. The order against Driscoll was revoked the following day, however, as he had only recently joined the prosecution team, and had not been a party to the relevant pleadings. Judge Sullivan stated that he would not impose sanctions until the case was over.

On Monday, Welch announced that the trial team of Brenda Morris, Nicholas March and Edward Sullivan were off the case, and would have no further role in the litigation of the charges of prosecutorial misconduct. This only makes sense, as they are necessarily witnesses to their own conduct, and will probably need to testify themselves. What is surprising is that the DOJ waited so long to take this simple action.

Welch added that the government will now turn over internal DOJ documents related to agent Joy’s allegations of misconduct, including memos and emails of the trial prosecutors. Again, what is surprising is not that this material is being disclosed, but that it took so long to do so. This notwithstanding Welch’s statement that the DOJ “understands that the interests of the parties and the public will be advanced by a prompt airing of these claims, and that additional delay relating to the whistleblower-status issue does not advance that cause.”

First, a recap: Last July, former Alaska Senator Ted Stevens was indicted on seven counts of failing to report gifts he’d received, including renovations to his house in excess of what he’d paid for, but mostly goods and services from oil tycoon Bill Allen. Sen. Stevens pled not guilty, and with an election coming up he demanded a speedy trial to clear his name. The trial began on September 25.

Soon after the trial began in Washington, D.C, the prosecutors came under fire for sending one of their witnesses home to Alaska without letting the judge or the defense know. The witness, Rocky Williams, then contacted the defense team and told them that he’d spent a lot less time working on Stevens’ home than the renovation company’s records indicated. That severely weakened the prosecution’s argument that the company had spent its own money doing the renovations.

Then it came out that the government had withheld Brady material. FBI records containing prior statements of a witness had been handed over to the defense, but the prosecutors — Brenda Morris, Nicholas Marsh and Joseph Bottini (pictured) — had redacted parts of the statements that were potentially exculpatory. This wasn’t affirmatively exculpatory material, but it was impeachment material, and should have been turned over.

A memo from Bill Allen was discovered during trial, in which Allen stated that Sen. Stevens probably would have paid for the goods and services, had he been asked to. The prosecution claimed that their failure to disclose it beforehand was an inadvertent oversight.

The judge was reportedly angered by all this, stating with respect to the Brady material that “it strikes me that this was probably intentional. I find it unbelievable that this was just an error.” Nevertheless, the judge did not declare a mistrial, and on October 27 the jury convicted Stevens on all seven counts.

Then in late December, FBI agent Chad Joy went public with the accusation that the prosecutors really had intentionally withheld exculpatory evidence, and had intentionally sent Rocky Williams back to Alaska to conceal him from the defense.

Now, as the New York Times reports, Joy has come forward with additional allegations of prosecutorial misconduct.

In his latest whistleblower filing, Joy claims that another FBI agent conspired with the prosecutors “to improperly conceal evidence from the court and the defense,” as the Times puts it.

“I have witnessed or learned of serious violations of policy, rules and procedures, as well as possible criminal violations,” Joy stated in his affidavit.

With respect to Rocky Williams, Joy stated that the witness was sent back to Alaska not because of ill health (the reason given by the prosecution), but because after preparing him for testimony, the prosecutors decided that his testimony would help the defense case. Joy stated that Nicholas Marsh came up with the idea, after Williams fared poorly in a mock cross-examination.

Joy stated that the prosecution team also tried to hide the Bill Allen memo that stated that Sen. Stevens would have paid for the items if he’d been asked to. Rather than an accident, as prosecutors claimed at trial, Joy now alleges that it was intentionally withheld.

In addition, Joy claims that fellow FBI agent Mary Beth Kepner had an inappropriate relationship with the star witness, Bill Allen. She almost always wore pants, he said, but on the day that Bill Allen testified, Joy says she wore a skirt, which she described as “a present” to Allen. Joy also states that Kepner went alone to Allen’s hotel room. Although Joy’s redacted affidavit doesn’t say it specifically, the defense team now claims that Kepner and Allen appear to have had a sexual relationship.

Joy also claims that FBI agents received gifts from Allen, including help getting a job for a relative.

The judge, Emmet Sullivan, has ordered a hearing to be held in two days, this Friday the 13th, on whether a new trial is warranted. If the judge determines that Sen. Stevens did not receive a fair trial, he could very well scrap the conviction and order a do-over. It would be anyone’s guess, at that point, as to whether the prosecutors would actually try the case again.

Watch this space for future developments.

The Bill of Rights, notably Amendments 4-6, protects accused individuals from improper action by the police. The typical remedy for police violation of these rights is suppression of the evidence that would not have been gathered but for the violation. This Exclusionary Rule protects the justice system, by ensuring that the maximum lawfully-gathered evidence is available, while ensuring that defendants aren’t prosecuted with unlawfully-gathered evidence. Police officers and departments are not punished for violations, because that would create an incentive to avoid borderline situations where evidence could have been obtained lawfully. Rather than do that, the Exclusionary Rule lets officers go right up to the line of what they’re allowed to do, and only takes away what they shouldn’t have been allowed to get.

The Exclusionary Rule is not an individual right, but is rather a remedy that has been crafted over generations of thoughtful jurisprudence. It simultaneously maximizes protection of the individual’s rights, and society’s interest in law enforcement. It balances two powerful and competing interests, and it does the job elegantly. As such, it is a beautiful rule, but one that is nevertheless criticized — both by law-and-order types and by defendant-rights types — when its role is misunderstood. Unfortunately, it is misunderstood all the time.

So it was no surprise to see plenty of misunderstanding of the Exclusionary Rule in yesterday’s Supreme Court decision in Herring v. United States (No. 07-513). Split 5-4 (and with delightful sniping in the footnotes), the justices on either side of the ruling tried to clarify what the Exclusionary Rule means, but only demonstrated that they’re missing the point. All of them. In their attempt to clarify the rule, all they did was muddy the waters.

That’s right, we just said that we understand the Exclusionary Rule better than the Supreme Court. Modesty is not our strong suit.

The Herring case arose in Coffee County, Alabama. Bennie Dean Herring was someone who’d had his share of run-ins with law enforcement over the years. His truck was impounded, and he went to the Sheriff’s Department to get something out of it. When one of the Sheriff’s investigators found out, he had the Coffee County warrant clerk check to see if Herring had any outstanding warrants. There weren’t any in Coffee County. Then they called neighboring Dale County to check. The Dale County computers showed an active arrest warrant for failing to show up in court on a felony charge. Based on that information, the Coffee County officer pulled Herring over as he left the impound lot, arrested him, and recovered methamphetamines and an illegal gun.

In the meantime, the Dale County warrant clerk went to get a copy of the warrant, to send to the Coffee County officer. But there wasn’t one in the file. So the clerk checked with the court, and found out that the warrant had been recalled. For whatever reason, the information never got from the Dale County court to the Dale County warrant database. The warrant clerk called the Coffee County warrant clerk immediately, and the warrant clerk immediately called the officer, but the arrest and search had already taken place.

At trial, Herring moved to suppress the evidence on the ground that the arrest was illegal, as the warrant it was based on no longer existed. The trial court said the evidence was admissible, because the officer did nothing wrong, and acted in good faith on information that the warrant was still outstanding.

On appeal, the Eleventh Circuit agreed that the Coffee County officer did nothing wrong. Any error was independent of that officer. The error was the result of negligence on someone else’s part, and was moreover a negligent inaction rather than some government action. The Circuit therefore held that the negligence was so attenuated from the officer’s actions that any benefit to be gained by suppression, and so the evidence was admissible under the “good faith” rule of U.S. v. Leon, 468 U.S. 897 (1984).

Writing for the majority, Chief Justice Roberts pointed out that, even if the search or arrest was unreasonable, the Exclusionary Rule doesn’t always apply. It’s a last resort only. He reiterated that exclusion is not a right of the individual, but is instead a deterrent. The benefits of a deterrent must be weighed against its costs.

Thus, when police have acted in “objectively reasonable” reliance on a warrant that was later held to be invalid, or on a statute that was later declared unconstitutional, or on a court (not police) database that mistakenly stated that an arrest warrant was outstanding, the Supreme Court has held that the evidence was admissible under the “good faith” rule. The Court had held that evidence should be suppressed only when the officer knew or should have known that the search was unconstitutional. Illinois v. Krull, 480 U.S. 340 (1987).

“Objectively reasonable” (or “good faith”) means “a reasonably well-trained officer would have known that the search was illegal, in light of all the circumstances.” It’s not a subjective test of what the officer actually intended, but rather a test of what he should have known. Here, there was no reason to believe that the Coffee County officer wasn’t being objectively reasonable in relying on the information from Dale County’s warrant clerk. So the officer did nothing requiring suppression.

The underlying error didn’t require suppression, either. Here, the clerical error wasn’t the result of a recklessly-maintained system. Nor was it the result of the police planting false information for the purpose of justifying false arrests later on. The kind of clerical error here is not something that the Exclusionary Rule could affect or deter meaningfully.

Roberts concluded by saying “we conclude that when police mistakes are the result of negligence such as that described here, rather than a systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way.’ In such a case, the criminal should not ‘go free because the constable has blundered.’”

In this opinion, Roberts’ reasoning was certainly sound. However, he amplified the erroneous viewpoint that the proper policy purpose of the Exclusionary Rule is to deter future misconduct. The policy is categorically not to deter. Deterrence is a purpose of punishment, and this is not a rule of punishment. Deterrence gives the police an incentive not to approach the line of impermissibility. That is precisely what the Rule is designed to avoid.

The Exclusionary Rule is not a rule of deterrence or of punishment, but is instead a rule of balancing — balancing individual rights with society’s interests in law enforcement. Roberts does get the concept, as in his discussions of balancing marginal utility against cost. But his repetition of the “deterrence” fallacy just confuses an otherwise clear argument.

Justice Ginsberg similarly the Exclusionary Rule in her dissent (joined by Justices Stevens, Souter and Breyer). Like Roberts, Ginsberg says the purpose is deterrence. But she goes even further to say that the Rule should be used to deter practically all police error.

This is a much more expansive purpose for the Exclusionary Rule (or as Ginsberg puts it, “a more majestic conception”). She goes so far as to say that any arrest based on carelessly-maintained database information would be unlawful, and would require suppression.

If the Rule were to be used as a deterrent, Ginsberg does make an argument that its marginal utility even in cases of carelessness, like this one, is sufficient to justify its use. Suppressing evidence could very well lead to reforms in the data management, to ensure that the same mistake doesn’t happen again. But exclusion is not the only means to that end, and is not even a very suitable means, as there is no actual pressure on the record-keepers to change their ways. The more effective means would be pressure from police leadership and political superiors to fix the process. Also, exclusion of evidence in County A is hardly likely to influence behavior in County B.

Justice Breyer issued his own dissent, joined by Justice Souter. In it, he makes the same error of ascribing deterrent purposes to the Exclusionary Rule, rather than the purpose of balancing interests. And as a result, he falls into the same trap of reasoning as Ginsberg.

Breyer wants a bright-line rule. Because of his focus on deterrence, he would draw the line between the police and the courts — if the error was made by court personnel, then they are not going to be deterred by suppression, so the Exclusionary Rule should not apply. But if the error was made by any police personnel, then the Rule should apply. Breyer fails to explain, however, how police database clerics are in any way deterred from negligent error by the suppression of evidence seized as a result of such error. He similarly fails to explain how court clerks are somehow different, so that they could not have been so deterred by suppression.

Ginsberg and Breyer’s arguments fall apart because they’re looking at suppression as a punishment, a deterrent, rather than as the result of a balancing of competing interests. Roberts gets it, but he too makes the same mistake to some degree. This decision seems to have muddied the waters, instead of clarifying the rule.

Oh well, better luck next time guys!

On Tuesday, the Fifth Circuit ruled on Jeff Skilling’s appeal from his conviction in the Enron case, upholding the conviction, but sending the case back for re-sentencing. Skilling may be able to raise a Brady issue on remand, as well, so the case doesn’t seem to be over. The opinion is 106 pages long, so we will summarize the ruling and its meaning for you here.

Skilling challenged his conviction, on the grounds that the government’s theory of “honest services” fraud was wrong. The government’s case let the jury decide on three purposes of Skilling’s conspiracy, one of which was to deprive Enron of the honest services of its employees. Because the jury returned a general verdict, if any one of those legal theories was insufficient, then the verdict must be reversed.

Skilling focused on the honest services theory, arguing that it was insufficient because his actions were done to give Enron a higher stock price, so it was in the corporate interest. He didn’t act in secret, and wasn’t self-dealing.

In making this argument, Skilling relied on the Circuit’s previous Enron case, United States v. Brown, 459 F.3d 509. In that case, a loan secured by Nigerian barges was fraudulently booked as revenue. The defendants in that case were specifically ordered by their CFO, Andy Fastow, to carry out the deal. Not only did they believe that Enron had a corporate interest in the scheme, and was a willing beneficiary of it, but their superiors ordered and approved their actions. Furthermore, they were paid more depending on whether they successfully achieved the goal.

The Court held that Skilling’s reliance on Brown was misplaced. The Brown rule absolves low-level employees of liability for honest-services fraud when:

1) the employer creates a particular goal,
2) the employer aligns the employees’ interests with the employer’s interest in achieving that goal, and
3) higher-level management authorizes or orders improper conduct in order to reach the goal.

Here, the first two conditions were met, but the third was not. Condition 1 was met when Enron created a goal of meeting Wall Street earnings projections. Condition 2 was met as Skilling got paid more if Enron met those projections. But condition 3 was not met, as there was no evidence that anyone besides Skilling authorized his conduct. The Board tacitly approved several of the underlying transactions, but never authorized him to engage in fraudulent conduct.

Because the third condition was not met, the Brown rule does not absolve Skilling of his liability. His conviction was therefore upheld.

—

With respect to sentencing, Skilling argued that the district court got the Guidelines calculation wrong, and that the sentence is unreasonable under §3553. The Court didn’t get to the §3553 issue, because it held that the Guidelines calculation was indeed incorrect, and a court has to do the Guidelines right before the §3553 factors come into play.

Skilling appealed a §3C1.1 two-level enhancement for obstruction of justice, and a §2F1.1(b)(8)(A) four-level enhancement for jeopardizing a financial institution.

The §3C1.1 enhancement was based on a determination that Skilling perjured himself as to his sale of Enron stock right after he resigned from the company. He’d tried to sell his stock while still CEO, but it would have had to be reported. So he resigned, then tried to sell his stock. But then September 11 happened, and he wasn’t able to sell until September 17. Skilling testified to the SEC that his order to sell on September 17 was due to his concerns over the market’s reaction to 9/11. The judge decided that was perjury.

On appeal, skilling didn’t argue that it wasn’t perjury. Instead, he argued that the court should have suppressed his SEC testimony in the first place, because the SEC misled him as to the fact that the investigation was criminal in nature.

The Circuit, however, pointed out that suppressible evidence can still be used at sentencing, and none of the exceptions to that rule apply here. The Court also found no justification for the original perjury. So the two-level enhancement was proper.

The §2F1.1(b)(8)(A) enhancement was based on the finding that Enron’s retirement plans were “financial institutions” for the purposes of that Guideline. Retirement plans aren’t specifically mentioned in the Guideline’s definition, which enumerates a long list of included entities. Various kinds of pension funds are included, however. And the list does include a catch-all “any similar entity.”

With respect to “pension funds,” the Guidelines don’t define the term. But a pension requires more than just employee investment for later payout — a pension has definitely determined payouts. Here, the retirement funds didn’t have specific benefits, they were just there as a pool for funding any benefits that might be given. So the Court decided they didn’t count.

With respect to the catch-all, apart from pension funds, the Guideline definition lists classic financial institutions like banks, investment houses, and the like. The Court did not want to expand the definition to declare every corporate retirement plan to be a financial institution.

Because the retirement plans weren’t financial institutions, the four-level enhancement was improper. So Skilling’s sentence was vacated, and the case was remanded for resentencing.

—

In addition to these main issues, the Court also rejected Skilling’s other challenges to his trial. Giving a “deliberate ignorance” instruction was at worst harmless error. None of the other jury instructions were problematic. The venue was proper. There was no prosecutorial misconduct.

Interestingly, however, the Court specifically stated that Skilling can raise Brady issues on remand. An FBI interview note showed that Andy Fastow didn’t think he had discussed a certain list with Skilling. This was omitted from the formal “302” report provided to the defense. Skilling claims that Fastow was talking about a list of talking points that Fastow had testified at trial he actually had discussed with Skilling.

The Circuit found this troubling, but the trial court never saw the notes or ruled on this claim, so nothing could be decided on appeal. But the Court instructed that “Skilling must bring this claim to the district court before we can address it.”

Therefore, Skilling might be able to get a new trial! If Skilling can show that there was a Brady violation, this case could be far from over. The government claims that the list in question is unrelated to the case, however, so we’re just going to have to wait and see.