In this Information Age, it is hard to grasp sometimes that everybody does not know everything. And yet it is so. It is common knowledge, for example, that dinosaur fossils are the bones of creatures that lived scores of millions of years ago, that terrorist hijackers flew planes into the World Trade Center and the Pentagon, and that eyewitness identification testimony is statistically as reliable as a ’78 Chevy. And yet there are tons of people who sincerely believe that fossils are just a few thousand years old, that the U.S. government conducted 9-11, and that an eyewitness I.D. is the be-all-and-end-all of Truth.

Actually, it’s not fair to lump the I.D. believers in with 9-11 conspiracy theorists, Genesis literalists, truthers and the like. The others are sort of fringe-y. But if you put 12 ordinary citizens in a jury box, of good intelligence and sound common sense, and the victim points dead at the defendant and says “there is no doubt in my mind, THAT is the man who raped me…” you can almost hear all twelve minds slamming shut. They’ve heard all they need to hear. So far as they’re concerned, this case is over.

This despite the fact that study after study after study reinforces the fact that eyewitness testimony sucks.

And innocent people go to jail — or worse — because of it.

So you can imagine how keen the legal world was to get the Supreme Court’s decision in Perry v. New Hampshire, which came down yesterday. Perry, identified by an eyewitness as someone she’d seen breaking into cars, argued that Due Process required a judicial hearing on the reliability of that testimony before it could be admitted at trial.

Which was the exact wrong thing to argue.

Due Process requires that the government makes sure that it does not do things that make its identification procedures unreliable. It does not require that a judge do the jury’s job. Particularly when that job — weighing the reliability of a given bit of testimony — is incredibly fact-specific.

And especially given all the evidence of all the various factors that go into making eyewitness testimony unreliable — racial differences, time lapse, focus of attention, lighting, familiarity, stress, presence of a weapon, etc. — what judge in his right mind is going to want to be the one deciding whether this particular eyewitness’s memory is good enough?

So it’s hardly any surprise that the Supreme Court balked at Perry’s Due Process argument. By a vote of 8-1 (former prosecutor Sotomayor as the lone dissenter, none better to know the power of the EW ID) the Supremes held that, unless law enforcement is alleged to have gotten the I.D. under unnecessarily suggestive circumstances, there’s no Due Process issue and certainly no reason for a pre-trial hearing on reliability.

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No, what Perry could have argued for is either (1) a rebuttable presumption, as a rule of evidence, that eyewitness testimony is inadmissible; or (2) allowing defendants to provide jurors with all the reasons why eyewitness testimony is not as reliable as they might think.

The first option is, frankly, stupid. But it’s the logical conclusion from the givens presented in his argument and those of the various amici, that eyewitness testimony is about as per se unreliable as it gets. If we can be forgiven a straw man here, it’s akin to the proscription against most hearsay. Hearsay is not permitted unless it’s deemed exceptionally reliable. So why not have the same rule for eyewitness testimony? Because hearsay is not prohibited because of its unreliability. It is prohibited because it cannot be tested, cross-examined, challenged. It’s a confrontation issue, not a reliability issue. Hearsay that is allowed comes in because it is so reliable that confrontation just isn’t an issue (in theory). Evidence is not precluded because it is unreliable. If something is unreliable, it is up to the other side to make sure the jury sees how unreliable it is.

As Justice Scalia implied during oral argument, unreliable eyewitness testimony is no different from any other unreliable evidence. But in practice, it is treated very differently. Sure, a judge might let the defense attorney cross-examine the witness on the lighting conditions, whether she had a gun in her face, and whatnot. And maybe the judge will let him make common-sense arguments to the jury in his closing about why that identification was wrong. But few if any will allow the defense to put on expert evidence demonstrating why this particular testimony might be wrong.

Eyewitness testimony is almost unique in this regard. Any other evidence the government might put on, the defense gets to put on its own evidence of why the government’s was wrong. Their expert says the stolen trade secret was worth a billion dollars? Your expert can testify why it was worth $12.98. Their witness says the bullet was fired from the apartment across the street? Your expert can show that it came from down the block and was deflected on striking the window. But if their witness testifies that she recognizes your client as the guy what done it, can you put on an expert to show that people of her race distinguish faces by looking at features that aren’t all that variable in people of the defendant’s race? Or that almost nobody with a gun shoved in their face in a dark alley for five seconds is going to form a clear memory of what the shover’s face looked like? Or that now, three years later, after countless retellings and waking nightmares and reassessments, the witness’s memory is nowhere near as accurate as it seems?

In most states, the answer is No. It’s either prohibited, or it’s up to the discretion of a trial judge, who’s likely to say no. (And the usual reason for prohibiting such testimony, irony of ironies, is that it’s such common knowledge that expert testimony is unnecessary.)

What Perry should have argued for, then, is to do exactly what Scalia suggested: treat eyewitness testimony like any other kind of testimony. Give defendants a chance to pry open those minds that snapped shut during the in-court I.D. Give defendants a chance to confront the evidence against them in a meaningful manner. When everyone in the world except for jurors, apparently, knows that eyewitness memory is godawful, give defendants the chance to educate them, at least to the extent that it applies to that particular case. While you’re at it, let jurors be instructed on factors affecting reliability if you like (as suggested by the majority opinion), but if you believe jury instructions make a difference one way or the other…

It’s not a Due Process issue. It’s a Confrontation issue. Allowing the defense to confront eyewitnesses and challenge their presumed accuracy is the issue. It’s not about shifting the fact-finding role to a pre-trial hearing, to assess things beyond the government’s process. Perry’s argument strikes us as not only stupid, but a waste of a perfectly good opportunity to have made some progress in this area. As it is, we may now be stuck in the status quo a few years longer than we might have been.

Thanks a lot.

“You are saying it was unfair to have a fair trial?”

That was a fair question put by Justice Kennedy at oral argument today. The issue is whether a criminal defendant can be deprived of the effective assistance of counsel (for Sixth Amendment purposes) when a lawyer screwup prevents him from taking a plea deal.

The issue was presented in two companion cases, Lafler v Cooper and Missouri v. Frye. In Lafler, defense counsel gave bad advice, so that the defendant rejected a plea offer and went to trial instead. In Frye, the defendant did take a plea, but an earlier more favorable offer had never been conveyed.

Everyone accepts as given that the lawyers in these cases screwed up big time. The issue is only whether the screwups were so deficient as to rise to a constitutional violation.

Defendants do not have a right to a plea bargain, of course. The Supreme Court has spoken pretty firmly on that one. The plea bargain is, however, almost universally lauded — it allows defendants to cut their losses, prosecutors and courts to free up resources, and gives the system a chance to impose a “more fair” penalty than that which the legislature would otherwise have imposed. Plea bargains are wonderful. But there is no constitutional right to them.

Given that, the layman might be forgiven for scratching his head and wondering why these two cases were granted cert in the first place. (Laymen do that, you know.) There was no constitutional right being deprived, and there’s no doubt about the reliability of the conviction, so how could there possibly be ineffective assistance here?

That’s pretty much what the government argues — that there’s no prejudice, so there’s no Strickland problem. Being convicted after a fair trial is not prejudicial. Voluntarily taking a guilty plea is not prejudicial. The mere fact that a less harsh sentence could have been gotten with a better lawyer may perhaps be a pity, but it is not prejudicial. A do-over ought to be out of the question.

But Padilla held that ineffective assistance applies to the plea bargaining stage, that failure to advise as to immigration consequences can require just such a do-over. So the defendants argue that what was prejudiced was the outcome of the plea process itself, and not the outcome of the case. The issue for them is not whether the defendant would have been convicted or not, but whether ineffective assistance deprived them of the opportunity to get a better deal.

Both defendants argue that the correct fix would be to give them a chance to accept the earlier offer that, but for their lawyers’ failing, they would have accepted in the first place.

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There is a fear that, if the defendants win, there will be a rash of appeals claiming that prior plea offers hadn’t been conveyed, or had been rejected for stupid reasons. Who wouldn’t want to take advantage of a chance to cut their 10-year sentence down to the 2-year offer that was originally rejected? How easy is it to claim that a lawyer told you something stupid, or didn’t tell you anything at all, especially as those discussions aren’t typically recorded or transcribed — it’s a he-said-she-said at worst, and who knows what lawyers might not be persuaded to bend the truth and swear out an affidavit substantiating the defendant’s claim?

One might also fear that, given this safety valve, defendants would be more likely to take cases all the way to trial, on the off chance that they win, knowing that if all else fails they can just go back to their saved game from the plea levels. That would sort of undermine the courts’ stake in plea bargaining, clogging the courts rather than freeing them up.

These are policy issues that may well be persuasive to the justices. Not law issues, so much as practicalities.

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But what did the justices actually say today? That might give a better clue to what they might be thinking. Our take is a Roberts-Scalia-Kennedy-Thomas-Ginsburg-Alito majority against a Sixth Amendment remedy. Here are some selected quotes from the Lafler argument (the Frye argument is left as an exercise to the reader):

CJ Roberts — “How are you ever going to know that the defendant would have accepted the plea agreement? Because by not accepting it he has a chance of going scot-free. He’s going to have a fair trial, that’s the assumption, and he may be acquitted … presumably the defendant will always say, ‘I would have taken that deal, because it’s better.’ So how is a judge supposed to go back and decide whether that’s true or not?”

Scalia — “Have you provided ineffective assistance of counsel if you are a lousy bargainer?” | “This man deserved to get the sentence he got, didn’t he? He had a full and fair trial. A jury of 12 people, finding him guilty beyond a reasonable doubt, determined that he deserved that sentence. How could it be unfair to give him the sentence that he deserved?” | “We reinstate the offer, okay. He accepts the offer and it goes to the judge and the judge says, ‘no, this is outrageous. No, I’m not going to approve of this plea bargain.’ What happens then?” | “There is no prejudice unless [the defendant] would have accepted the deal. How are you going to know that he would have? Of course he is going to say that he would have, but how is a trial judge going to make a credibility determination on that?”

Kennedy — “Let’s say the remedy is it goes back before the judge … I should ignore everything that I learned during the trial?”

Breyer — “As I’ve looked at it, I don’t see the ineffective assistance of counsel within the AEDPA meaning…. So what am I supposed to do about that? … In my own opinion at this moment, perhaps no one else’s, there is no ineffective assistance of counsel such that the Sixth Circuit could set that aside.” | “So if you are the defense counsel, the best thing for you to do is not communicate any plea offer you get, and then if your client is found guilty, then you can go back and say, ‘oh by the way, I didn’t tell you about this,’ and he gets a whole new trial?”

Ginsburg — “Explain why defective advice causing a plea, that qualifies [for relief], but defective advice causing a defendant to turn down a plea does not?” | “That [the defendant would have gotten a better deal] is certainly controverted, because of two interventions: The prosecutor can say ‘no deal; I’m withdrawing it,’ even after an initial acceptance; and the judge can say, ‘I think 51 to 68 is entirely improper for what this man did.”

Alito — “What if it had come to the prosecutor’s attention during this intervening time that your client had committed four or five other shootings? Would you still be entitled to specific performance?” | “Do you think it’s feasible to draw a distinction between this case, where there was arguably inaccurate legal advice, and the case in which the defense attorney simply makes a terribly mistaken calculation about the chances of a favorable verdict at trial?”

Sotomayor — “Counsel, isn’t there a right to make a critical decision on whether to accept or reject a plea bargain, once offered?” | “How can a trial be fair when the attorney is going into trial thinking [the stupid advice he’d given when counseling against taking a plea]?”

Kagan — “Here the person is sitting in prison for three times as long as he would have been sitting in prison had he had effective assistance of counsel at the plea bargaining stage, so why doesn’t that just meet the requirements of Strickland, both deficiency and prejudice … and … a different outcome.” | “You don’t contest that plea bargaining is a critical phase, entitling somebody to a lawyer and to an effective lawyer, do you? … Because we have said that many times, isn’t that right?” | “To deprive somebody of a lawyer at that stage of the process, where 98 percent of the action occurs, is inconsistent with the Sixth Amendment — that’s what we’ve said, isn’t that right?” | “Have you ever seen a critical phase before in our Sixth Amendment jurisprudence where the right to a lawyer depends upon what happens during that critical phase — where if one outcome results there is no Sixth Amendment right, but if another outcome results there is?”

Thomas — “…”

So yeah, we’re calling it 6-3. What’s your call?

Extortion is a kind of threat.  A threat that’s so bad, it’s criminal.  For a threat to be criminal extortion, it needs to be of a kind to make someone do something against his will, that’s adverse to his own interests.

Threatening to kill a child if the parents don’t give you money, for example, would be extortion.  So too would be a civil lawyer’s threat to file criminal charges — even if such charges are warranted — if the other side doesn’t pony up with a settlement.  Another example is when a government official threatens to use his position to do something he’s perfectly entitled to do in the first place, unless the victim does him a favor first.

There are lots of examples of extortionate behavior.  But these last two examples demonstrate that the threatened action doesn’t itself have to be against the law.  The civil lawyer could go ahead and press criminal charges, but threatening to do so is against the law.  Ditto for the government official whose threat to merely do his job is a crime.  The point isn’t whether the threatened action is itself criminal, but whether the threat causes such fear as to override someone’s free will.

This is basic stuff.  Not exactly cutting-edge law here.

So how come nobody seems to have litigated the Queens (New York) District Attorney’s practice of extorting speedy trial waivers from defendants?

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In New York, there are a few different kinds of speedy trial rules.  One is the classic constitutional speedy trial rule, also embodied by statute in CPL §30.20.  It’s almost never used, because before any delay is likely to have impaired the defense in a typical case, CPL §30.30 will have kicked in.  That one, in a nutshell, calls for dismissal of a felony after roughly 183 days have counted against the People since the initial arraignment.  Delays asked for or consented to by the defense don’t count.  A third analogous rule is the “speedy indictment” rule of CPL §180.80, which says a defendant who hasn’t made bail must be indicted within 144 hours of his arrest, to the minute, or else he must be released from custody on his own recognizance.

CPL §§30.30 and 180.80 are there to make sure the prosecution does its job.  If a case has had more than 6 months of delay, and it’s the People’s fault, then the prosecution didn’t do its job, and the case gets dismissed.  If the People haven’t gotten their act together to secure an indictment against someone who’s sitting in jail, and this goes on for 6 days, then the prosecution didn’t do its job, and the defendant gets released for the rest of the case.

The policy is simple: we don’t want people rotting in jail while waiting to be formally accused of a crime, and we don’t want people’s lives on hold forever while awaiting trial.

The Queens DA’s office has come up with a workaround, to avoid having to play by these rules.

Their office policy is to require defendants to waive the CPL §§30.30 and 180.80 requirements, to enable the office to “investigate” the case more thoroughly before presenting it to the grand jury.  A defendant who does not waive these rules, the policy goes, will not be offered any plea bargain.

They’re threatening not to do their job right, unless the defendant first agrees they don’t have to do their job right.  How is this not extortion?

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Now, no defendant is entitled to a plea bargain.  It’s not a right, it’s not a guarantee, and it’s not even a privilege.  But the chance for a plea bargain — especially in the busy dockets of New York City — is certainly a fair expectation.  There is mutual benefit to all concerned: the prosecution doesn’t have to waste time and resources trying a case it didn’t need to; the courts can handle more cases without breaking the bank; and defendants get a disposition that satisfies the interests of justice without subjecting them to the higher sentence contemplated by the legislature.  The legislature countenances this practice, explicitly specifying what kinds of plea bargains are allowed in a given case.  Justice is served, all around.  And it’s the norm, the routine.  It’s a fair expectation, in almost every case.

There certainly are times when a plea bargain is not appropriate.  The most common example is when the hearings and trial have already begun.  Once the People have done all the preparation for trial and have started putting on witnesses, they don’t gain a whole lot from any plea deal. 

Another good reason not to offer a plea is when the defendant has testified in the grand jury and said he didn’t commit the crime.  There’s no reason to penalize a defendant who testified that he did do it, but threw himself on the mercy of the grand jury — that’s perfectly fine.  But a defendant who says he didn’t do it is either telling the truth — in which case he’s innocent, and it would be unethical for a prosecutor to induce an innocent person to plead guilty by offering a lighter sentence — or he perjured himself and is undeserving of any beneficial treatment.

When a prosecutor tells a defendant that he will not get a plea offer if he testifies in the grand jury that he didn’t do it, that’s nothing more or less than a fair warning.  It’s not only appropriate, it’s practically required as a matter of professional ethics.

Telling a defendant that he will not get a plea offer unless he waives his statutory rights to speedy indictment and speedy trial, on the other hand… That’s extortion, pure and simple.

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So we’ve had some clients who had done this Queens waiver with prior counsel.  (Aside: The vast majority of our clients come to us mid-case, after losing faith in their original lawyers.  It’s nice, but it also makes us wonder why they didn’t just come to us first.  But that’s a topic for a whole ‘nother blog post.)  One is a strictly routine, run-of-the-mill case, yet it took the Queens DA’s office 15 months to get off their duff and take it to the grand jury. 

That struck us as excessive, so we analyzed whether there might be a speedy-trial violation here.  The waiver sure seemed extorted, so it seemed like an argument worth raising. 

But wait a second.  This has been the Queens DA’s policy for some time now.  One would think it had already been litigated.  We enjoy this stuff, but there’s no point wasting client dollars just to re-invent the wheel.

But no.  It doesn’t seem to have been litigated.  At least there aren’t any written decisions out there on this topic that we can find.  And nobody we’ve asked — including current Queens DA personnel — seems to be aware of any cases on point.

That’s just weird.  Sure, not every defendant is going to have a problem with this.  And defense lawyers who advise their clients to execute the waiver are not often going to claim their clients were extorted.  But even so, we can’t be the first to raise the issue.

Oh, we’ve raised it now.  And it wouldn’t be our first case of first impression, by a long shot.  But it’s just weird that nobody’s already called the DA’s office on this completely wrongheaded policy.

So we’ll ask our readers: What do you think about this?  Is the Queens DA doing anything wrong by conditioning plea negotiations on a waiver?  Or are we missing something here?

Gideon v. Wainwright, 372 U.S. 335 (1963) guarantees that criminal defendants who cannot afford a lawyer must be provided one by the state. In a groundbreaking decision today, New York’s highest court ruled that “serious questions have arisen in this and other jurisdictions as to whether Gideon‘s mandate is being met in practice.” And these questions are significant enough to warrant a class action against the State of New York by criminal defendants left to suffer the consequences.

In a lengthy opinion (viewable here), Chief Judge Lippman goes out of his way to point out that this is not a Strickland issue about whether defendants are getting ineffective assistance of counsel. The issue is whether the state is denying them counsel, period.

In order to allow the class action to go forward, the court had to find that there’s a basis for that suit, that looked at in the light most favorable to the plaintiffs they actually have a case. So what did the court see here?

Judges are deciding who is or is not “indigent” for the purposes of assigning counsel, and there are no standards for that determination. There’s no rhyme or reason to it. There’s no consistency. People who perhaps should be getting a public defender wind up never getting a lawyer at all. There’s a huge Due Process and Equal Protection violation right here.

Defendants are arraigned without having a lawyer present. Bail gets set in amounts they could never afford. And they wind up languishing in jail without representation, even for minor offenses. They lose their jobs in the meantime, and lose their homes when they can’t pay the rent, and their families suffer enormously.

Defendants appear in significant court appearances without counsel. They enter into pleas without a lawyer. This despite the clear language of CPL 180.10(5) forbidding a court from proceeding without counsel, unless the defendant has knowingly agreed to it.

In instances where lawyers do get appointed, they’re incompetent. They don’t confer with their clients. They don’t learn the case. There’s a different lawyer at each proceeding, just as unfamiliar with the case as the previous one. They don’t respond to client inquiries however urgent. They either miss court appearances, or if they do appear they’re unprepared to proceed.

The appointed lawyers waive important rights, without first conferring with their clients and getting authorization. They make “virtually no efforts on their nominal clients’ behalf,” as the opinion puts it.

“Actual representation assumes a certain basic representational relationship.” The facts here show the opposite, that there are “serious questions as to whether any such relationship may be really said to have existed.” In other words, counsel may have been appointed, but there was never any real attorney-client relationship. This is not ineffective representation — it is the absence of representation.

Apparently, according to the opinion, the main reason for the woeful lack of representation by the public defenders is “inadequate funding and staffing.” This makes sense, to some degree. Most counties in New York look on the state’s application of Gideon as an unfunded mandate, which makes it both unpopular and unlikely to be high on the priority list when budgets are set. Besides, it’s only going to go towards the defense of bad guys, right? So who cares if they get the short end of the stick?

The allegations pertain to five upstate counties, but this is stuff we’ve seen elsewhere and in other states as well, so bizarre as these claims may sound to the unititiated, we can tell you that they ring true to us. Heck, just last month we took over a public defender’s case in New Jersey, where the client had been sitting in jail for a month on $100,000 bail without once even having met his public defender. We got retained, met with the kid, did the work the PD should have done, and got that bail knocked down to $5,000. That kid should have been walking around a month earlier, and would have been if the system there worked, which it didn’t. And just this morning we were in a NY State courthouse, where we saw a public defender round up all the legal aid defendants out in the hallway and harangue them, shut down anyone who tried to ask a question, and otherwise so distress all the indigent clients that one came over and begged me to take her case with the promise that she’d find some way for her family to pay ourfees. (We declined, because we’re really quite expensive, but another less-expensive attorney took her up on it.) Anyway, the point is we see this kind of stuff every day in places outside the five counties named in the lawsuit. The system really is broken, and it’s time to fix it.

One thing that’s really interesting to us is that this case is being brought collaterally, as a civil class action, rather than as a series of individual post-conviction appeals. The defendants in the criminal actions are the plaintiffs in the class action. As the court points out, there is no reason why the defendants should wait until their cases are over, and pursue their claims on appeal. They’re perfectly within their rights to go right to civil court whether or not their criminal cases are still pending. But to be honest, the thought never occurred to us before. And yet, there’s nothing astonishing about the idea apart from the fact that it hasn’t really been done before. “This action properly understood,” explains the court, “as it has been by distinguished members of the prosecution and defense bars alike, does not threaten but endeavors to preserve our means of criminal adjudication from the inevitably corrosive effects and unjust consequences of an unfair adversary process.” There is no reason why the class members here cannot seek to enforce their right to counsel, and compel the state to provide that counsel as is their right.

And a civil court certainly has the power to compel the state to do its job. That’s one of the most beautiful things about our judicial system. It’s one of the main reasons we went into law in the first place. So we’re happy to see the Court of Appeals making the right call here. It remains to be seen whether the class members can prove their case, but at least now they’re getting the chance to make it.

Yesterday, the Supreme Court ruled that defense lawyers must advise their immigrant clients that, if they plead guilty, they could get deported. (Read the opinion here, and you can read more about the case here and here.) In a nutshell, Jose Padilla took a plea to selling drugs, and his lawyer told him not to worry about deportation since he’d been a lawful permanent resident for 40 years. That was erroneous advice. Kentucky wouldn’t let Padilla get his plea back, saying this error was about a collateral consequence outside the criminal justice system, so it wasn’t ineffective assistance for Sixth Amendment purposes. The Supreme Court disagreed, saying it absolutely was ineffective assistance. Defense lawyers are duty-bound, as a constitutional matter, to let clients know that pleading guilty could get them deported.

Note that this burden is on the defense counsel, and not on the court. The court does have to advise defendants that they’re giving up their right to a jury trial and all the other things they’re foregoing, but the court doesn’t have to warn about “collateral” consequences of the plea. And deportation is one of a myriad of potential collateral consequences, including losing a driver’s license, or the right to vote, or the ability to hold a particular job, or government benefits. (There are entire books dedicated to listing and describing all the collateral consequences out there.)

But deportation is different. It’s a dramatic life-changer, often more so than incarceration. It affects the now-banished immigrant, but also his family. So somebody ought to mention it to a defendant before he takes a plea and effectively deports himself.

For that reason, since the days of disco the ABA has had standards of conduct for defense lawyers, requiring us to inform our clients fully and accurately about what consequences they might face. See ACA Standards for Criminal Justice, 14-3.2 Comment 75. Some, but not all, states also require it by law. And some states even require judges to do it from the bench as part of the plea colloquy.

But now the Supreme Court has ruled that, as a matter of constitutional law, failure to inform an alien of the risk of deportation is ineffective assistance of counsel. It violates the Sixth Amendment. So the client can take back his plea and go to trial instead.

Great for clients, some defense lawyers may be huffing, but not for us. Now what, are we supposed to master a whole nother specialty of law, and a notoriously byzantine one at that, just so we can do a constitutionally effective job? That would suck!

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Well no, the rule doesn’t suck. We do not have to all of a sudden become experts in immigration law. We do not have to parse the insanities and inanities of that highly complex field. All we have to do is advise our clients that there is a risk of deportation. And we’d better not tell them there is no risk, when there really could be one.

This really is nothing new. It’s what we’re supposed to have been doing all along. For example, look at U.S. v. Couto, a Second Circuit case from 2002. That one held that incorrectly advising one’s client about deportation (as opposed to failing to advise at all) was obviously ineffective assistance of counsel. But it reminded everyone that, when a client is an alien, “counsel and not the court” must advise him of possible deportation. They cited the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289, 323 n. 50 (2001), which pointed out that:

Even if the defendant were not initially aware of [deportation issues], competent defense counsel, following the advice of numerous practice guides, would have advised him concerning the provision’s importance.

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Criminal deportation has a long history in this country. Although it serves a punitive purpose — notably deterrence and incapacitation — it’s not treated as a penal matter. It’s an administrative function of the federal government, which has the authority to regulate aliens and immigration. It’s firmly part of customary international law, a right of nations.

For a long time, though, deportation was reserved for only a few crimes. For a while, it was only used for felonies of “moral turpitude” (a phrase never statutorily defined), and then in 1917 they added anarchy and attempting to overthrow the government (a real problem back then). In 1931 they added drug crimes, but not if the defendant was an addict.

By this time, at the start of the Great Depression, immigration had become a hot-button issue. Importing criminals was no-go, and allowing aliens to remain once they had committed crimes would reduce the public’s confidence in the rightness of immigration. So from this point forward, the number of things one could get deported for grew by leaps and bounds. By 1988, you could get deported for a wide range of violent and non-violent crimes. The number of offenses went through the room with the passage of the AEDPA in 1996.

Between that and the IIRIRA, practically anything can get you deported now. And at the same time there is little to no leeway, mitigation or discretion allowed. Low-level state crimes are enough. Suspended sentences are enough, even if they’re never served. It’s pretty much automatic. There is no release valve, other than finding some plea bargain that doesn’t have deportation consequences.

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Well, that’s hardly a challenge to defense counsel, if you think about it. It’s no different from searching for that elusive federal misdemeanor, when negotiating a federal plea. It’s like searching for a needle in a stack of needles, but it’s not always a fruitless task.

If our job is to get the best outcome for our clients as we can, doesn’t that mean we’re duty-bound to try and find some outcome that won’t result in deportation? And doesn’t that mean we have to at least know what offenses do and do not have immigration consequences?

So it’s hardly a stretch to then inform a client that a particular plea bears a risk of deportation. It’s not a big deal. Nobody should be upset about this. We all ought to have been doing this already.

“Why is this case here, except as an opportunity to upset Melendez-Diaz?”

So wondered Justice Scalia during oral argument a couple weeks back in the case of Briscoe v. Virginia. For some background, see our previous post on this case here. Briefly, the Supreme Court held last year in Melendez-Diaz v. Massachusetts that, in a drug case, the prosecution cannot prove the existence of a controlled substance by merely introducing the lab report — the chemist has to testify, or else the Confrontation Clause is violated. There was a huge outcry from prosecutors’ offices across the country. It would be too much of a burden to get chemists to testify at every drug trial. There was a concerted effort to get around this new ruling, or better yet to get the Supremes to reverse themselves.

So in Briscoe, Virginia tried to get around the rule by saying the prosecution only needs to introduce a lab report, and if the defense wants to confront the chemist then the defense can subpoena the chemist as a witness.

More than half the state attorneys-general filed an amicus brief, arguing that the expense and administrative burden of getting chemists to testify at trial would just be unworkable. At oral argument on January 11, it sounded like Justice Alito, at least, was buying into that argument (Tr. at 16, lines 16 to 18). And there was hope that Justice Sotomayor would be that one extra vote to undo Melendez-Diaz.

In our previous post, we pointed out various reasons why such hopes weren’t based in reality, and why the claims of expense and burden don’t hold water. We seriously doubt that anyone at the Supreme Court bothers to read this blog. But these observations are fairly self-evident, we think.

So it was no surprise to see a one-sentence smackdown from the Supreme Court this morning:

We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009).

It is so ordered.

In other words, if the states do not put the chemist on the stand in the People’s case, then they violate the Confrontation Clause. End of story. Bureaucratic convenience does not trump individual rights.

As for all those prosecutors’ offices who whine that it can’t be done? We’d ask them to look at New York City, whose courts are far busier than theirs ever will be, and who nevertheless manage the job as a matter of routine. Defense counsel often stipulates to the substance being what it is, and when there is no stipulation then getting the chemist to court is no more challenging than any other police employee who’d rather not be there. It’s just part of the job, and amazingly enough it works out just fine.

On June 25 last year, the Supreme Court held in Melendez-Diaz v. Massachusetts that in a drug case the prosecution can’t simply use a sworn lab report to prove the existence of a controlled substance. If the chemist doesn’t testify, it violates the Confrontation Clause. (See our previous post about it here.)

Four days later, on June 29, the Court granted cert. in Briscoe v. Virginia, to decide whether the states can get around this requirement if they permit the defendant to call the lab analyst as a defense witness. Oral arguments are scheduled for next Monday, and we can’t wait to hear how the Commonwealth of Virginia tries to make its case.

It seems to us that there is an obvious burden-shifting problem here. The state, and only the state, has the burden of proving every element of the crime. Since the Winship case in 1970, this has been a due process requirement of the Constitution. Unless he asserts an affirmative defense, the defendant has no burden to prove a thing.

So the prosecution has to prove an element. It needs a forensic test to prove it. It needs the testimony of the analyst to introduce the results of that test. The defense does not have a burden to prove anything, one way or the other, about the test.

But Virginia wants to be able to prove its case using only the lab report, and get around the Confrontation Clause by saying the defense is allowed to call the analyst if they want to confront him.

First, who cares whether the state allows the defense to call the analyst or not? Last time we checked, the defense could call any witness they chose, by subpoena if need be. The defense always has the opportunity to put the analyst on the stand as a defense witness. This “permission” doesn’t actually give the defense permission to do anything it couldn’t already do. All it does is imply wrongly that the defense couldn’t have done so otherwise.

Second, the state cannot impose a burden of proof on the defense like this. Virginia’s scheme essentially precludes the defense from challenging the state’s evidence during the state’s case. It forces the defense to act affirmatively and put on a defense case in order to challenge the state’s evidence. That’s a big due process violation.

Third, the state does not get around the Confrontation Clause by shifting the burden to the defendant to call those witnesses it wishes to confront. In a murder case, it would absurd to let the prosecution introduce an eyewitness’s written account of what happened, and no more, so long as the defendant himself could have called the eyewitness if he wanted to. That’s indistinguishable from what Virginia wants to do.

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Lots of prosecutors’ offices are hoping that the Supremes will side with Virginia on this one. Particularly in the more amateurish offices, there is a feeling that the Melendez-Diaz decision imposes too great a cost on the criminal justice system, and imposes unworkable inefficiencies, by requiring chemists to take time off from their busy jobs to testify at trial. An amicus brief filed by half the nation’s attorneys general makes these arguments.

But just look here at New York City, the busiest criminal courts and crime lab in the world. Lab reports are used in the grand jury, where there is no confrontation right, but the chemists themselves must testify at trial. Somehow, this requirement has not bankrupted the city. Getting the chemist to show up is just one more minor hassle that prosecutors have to deal with, no more challenging than getting cops to show up. The requirement is so minor that nobody really thinks about it.

-=-=-=-=-

Still, Melendez-Diaz was a 5-4 decision. And one of the five, Justice Souter, has been replaced by former prosecutor Justice Sotomayor. So people are thinking that she’s going to be more pro-prosecution here, and help the Court either reverse or severely limit that decision.

We don’t think so. We’d remind Court observers that Sotomayor came out of the Manhattan DA’s office, not one of the “amateur hour” offices. Her own personal experience is that requiring the chemist to testify at trial is really no big deal.

-=-=-=-=-

So we’re looking forward to the oral arguments next week. If Scalia gives as good as he did in last June’s decision, and if we’re right about Sotomayor, then Virginia’s in for a spirited beatdown.

If you are charged with a crime, the stakes couldn’t be higher. Unlike civil lawsuits, which are merely about money, criminal prosecutions are the real deal. You can lose your liberty, rights, reputation, and opportunities down the road. You can lose your life, or a substantial part of it. So you obviously want a lawyer who can do the job well.

Fortunately, the criminal defense bar is full of lawyers who are good at what they do. The vast majority do a fine job, working very hard in difficult circumstances to get the best results they can for their clients. They’re smart, dedicated, and wise.

However, there are a few out there that one might want to avoid. They fall into 7 general categories, described below. YMMV, and there may be outstanding attorneys out there who nevertheless fall into one or more of these categories. For the most part, however, these types should be retained with caution:

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1) The Dilettante

You’ve just been arrested for armed robbery. You need a lawyer, and fast. But you don’t know any lawyers. Fortunately, there’s Mr. Paper, your dad’s corporate lawyer. Your dad asks him, and Mr. Paper says he’d be happy to represent you. This is great! He’s very respected, and smart as a whip, and he’s known you since you were a baby, so you feel very comfortable hiring him.

Mr. Paper, meanwhile, is thrilled. He hasn’t seen the inside of a real courtroom since the day he was sworn in. He’d love to get a little of that real courtroom action, just for once. He’ll take a couple of hours now to bone up on criminal procedure, and learn what he needs to as it comes up. He’s a quick study, and he’s negotiated tons of very difficult business deals in his day, so how hard could it be?

Unfortunately, it’s not as easy as that. He doesn’t speak the language. He doesn’t know what the judges and clerks expect him to do and say. He won’t know what the prosecutor needs to hear. If you’re lucky, the prosecutor will recognize that your lawyer doesn’t know what he’s doing, and throw him a bone or two to prevent an ineffective-assistance-of-counsel do-over.

If you’re not so lucky, however, you’re screwed. Maybe you could have gotten off on a technicality, but Mr. Paper never realized it. Maybe you could have gotten a better plea offer, but he didn’t know how to get it. Maybe you could have won at trial, but Mr. Paper didn’t know how to prepare, couldn’t cross-examine to save his soul, and wasn’t able to get the point across to the jury. He got his jollies, and you got jail.

Identifying traits: Refers to your case as a “project.” Brags to all his friends and clients that he’s “got a criminal trial coming up.” Uses phrases like “buy-in,” “going forward” and “what’s a Mapp hearing, again?”

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2) The True Believer

This lawyer seems great, at first glance. She is ready to believe you didn’t do it! In fact, she’s convinced of your innocence! She’s going to fight the government tooth and nail!

The True Believer does not negotiate. Her clients are innocent. Innocent people do not plead guilty. There will be no plea here. This case is going to trial!

So far, so good, right? Maybe not. You may have noticed a certain lack of objectivity here. This is the hallmark of the True Believer. She is immune to reason. She is incapable of seeing your case for what it is, flaws and all. She’s crossed the line from “zealous advocate” to “zealot.”

The True Believer has an anti-authority streak so wide, it blocks her vision: All cops are liars! All evidence is planted! All confessions are coerced! The system is corrupt! It’s just a machine that shoves innocent people into prison! It’s racist! It’s classist! It’s… you get the picture.

Her clients may feel good, knowing that she is so strongly on their side. But her clients suffer for it, in the end. Maybe there really was rock-solid evidence against them, and a conviction was practically guaranteed, but a decent plea bargain could have been negotiated. It didn’t happen, though. She’d rather take a spectacular defeat than earn a quiet victory. And now the client is slammed with a sentence that’s more severe than they could have gotten.

Or maybe the case did have weaknesses. Sometimes the evidence is flawed. Sometimes the cops do lie. Sometimes there was a rush to judgment. But who is going to believe a defense attorney who has made a career of crying wolf? Certainly not the judges and prosecutors who have put up with her antics all these years. And that’s too bad, because had she retained some credibility she might have been able to convince them to drop the case, or at least reduce it.

The True Believer is hamstrung by her belief in her client’s innocence. She is incapable of giving wise counsel, dealing with obstacles, or negotiating with the government.

The True Believer’s clients suffer worse penalties because of her. And the injustice of it all only feeds her convictions, of course. It’s so unfair! Nobody listens to the truth! It’s a conspiracy of apathy! It’s systemic racism! And so it goes…

Identifying traits: Righteous indignation. Tendency to substitute slogans for thought. Willing, if not eager, suspension of disbelief.

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3) The Social Crusader

Not to be confused with the True Believer, the Social Crusader is out to change the world. The system is broken, and he’s going to change it! That is a laudable goal, of course. And there are ways it can be achieved — perhaps through getting involved in politics, writing editorials, and the like. But instead of trying to persuade those who actually make the rules, he’s taken his political activism to the one place where it does more harm than good: the courtroom.

It doesn’t matter if the Social Crusader thinks that a drug crimes are punished too harshly; his client is still going to be punished according to those laws. It doesn’t matter if he thinks capital punishment is inherently cruel and unusual; his death penalty client still faces it. It doesn’t matter if he thinks the police shouldn’t be allowed to search places that the law lets them search; the evidence is still going to be admitted.

The Social Crusader wastes his time fighting the law from within, and his clients suffer dearly for it. Instead of challenging the evidence, and perhaps winning the case, he fights policy and loses. Because it’s not about right or wrong, it’s about what can be proved.

The Social Crusader also cannot negotiate. How could he even think of allowing his clients to plead guilty to something that shouldn’t even be a crime? So forget about getting a good plea bargain with this guy.

This guy simply doesn’t understand that political activism is not his job right now. His job is to get the best outcome he can for his client. One does this, not by arguing what the law ought to be, but by dealing with the law as it is. Instead, he’s living in a fantasy world, ignoring cruel reality. His client, living in real life, suffers for his lawyer’s failure to deal with it.

Identifying traits: Says things like “draconian drug laws,” “someone ought to do something about…,” “the law is an ass.” Tends not to wear suits, preferring activist chic that sends a message, an anti-suit that is just barely permissible in court. Weird hair. Doesn’t talk about you or the facts of your case much, if at all.

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4) The Whiner

At first glance, this lawyer seems like she’s totally going to bat for you. She’s constantly advocating for her clients, trying to get prosecutors to make better offers. When she’s not on the phone, she’s in court making an argument. What’s not to love?

The problem is that she’s not actually making arguments. As Michael Palin put it, “an argument is an intellectual process,” and that’s not what’s happening here. Instead of saying things like “here’s why my client deserves a better offer,” the whiner resorts to “why can’t you just give him a misdemeanor?” or “aww, c’mon, can’t you give him probation?” Repeatedly. Over and over again. In every phone call. A typical conversation might go like this:

Whiner: Oh, come on, why can’t you just give him a misdemeanor?

Prosecutor: Because he sold heroin to an undercover and three others in a school zone, he doesn’t have a drug problem, and this is the third time he’s been caught doing it. He’s already had his second and third chances, and I’m not going to offer anything less than a year this time around. Now of course, I only know what the cops told me, and if there is something else I need to know that would change my mind, I’d love to hear it.

Whiner: But I don’t understand why you can’t just offer the misdemeanor!

Repeat for ten minutes.

The strategy may be simply to wear down the other side until they give in. But we’ve never seen it work. All one gets is a pissed off adversary who is entirely justified in never returning one’s calls again.

The Whiner tries the same tactics on judges, with even less success.

One would think that, after having this strategy fail time and time again, the Whiner might consider trying something new. But she doesn’t. She just whines harder.

True story: We were in court watching a pathetic performance by a Legal Aid lawyer widely known to be one of the worst Whiners. As usual, it didn’t work. Later, out in the hallway, we saw her supervisor chastising her. Really laying into her. What was the supervisor saying? “You weren’t whining enough! You need to be whining more! Why weren’t you nagging them?” And more of the same. We kid you not.

So apparently some defense attorneys are actually trained to do this. But it’s lazy, substituting persistence for advocacy. Instead of thinking or doing some actual lawyering, the Whiner just tries to wear down the opposition with entreaty and supplication. It’s not a strategy we would advise.

Identifying traits: Permanent pout or moue. Nasally voice. Puppy-dog eyes.

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5) The Fraidy Cat

It’s true, some lawyers really are afraid of going to trial. Maybe they have stage fright. Maybe they don’t know what to do in front of a jury, and know it. Maybe they’ve had one too many bad experiences. Whatever the reason, they’ll do anything to get out of going to trial.

That’s not a good trait for a defense attorney to have. Sure, 99% or more of criminal cases never go to trial. But nobody knows which ones are going to be the lucky few that do. As time goes on, and a case starts looking more and more like it might actually go to trial, the Fraidy Cat starts getting the urge to just take an offer — any offer.

There are two problems with that. First, some cases really do need to go to trial. Sometimes the cops got the wrong guy. Sometimes the evidence just isn’t good enough. Sometimes, people get acquitted. But nobody gets acquitted until after they’ve had a trial. And Fraidy Cats don’t go to trial, so their clients aren’t likely to get acquittals. Their clients are more likely to get counseled on the wisdom of taking a plea instead. (Now many of those clients probably should take a plea, but what about the handful who maybe shouldn’t have?)

The second problem is that criminal practice is a small world, and reputations get around. A lawyer who has a reputation for backsliding on the eve of trial is just not going to get great offers. Even in a difficult case with tricky evidence, where ordinarily a prosecutor might be willing to lower his offer to avoid the uncertainty of trial — there’s no need to do that, when everyone knows this case is never getting in front of a jury.

The Fraidy Cat is often a Whiner as well.

Identifying traits: It can be hard to differentiate a Fraidy Cat from a normal lawyer. One of the best ways is to insist at your first meeting that you won’t plea bargain, but will insist on a jury trial. And watch his eyes. If he tenses up like a cornered baby rabbit, you might consider probing further.

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6) The Caseload Crammer

On the whole, it’s good to be busy. More cases mean more fees, and more job satisfaction. But too many cases can be worse than too few. The Caseload Crammer has way too many cases.

Often, the Crammer is getting most or all of his fees from low-paying court-appointed work. This kind of work is fine if one is starting a new practice, or wants to supplement one’s normal caseload with some indigent work. But these cases pay very little. A lawyer who relies exclusively on them is going to need to have more than he can probably handle, just so he can eat.

A client whose lawyer has hundreds of other clients probably isn’t getting that much attention. That may not be a problem if your case is strictly routine. It may actually be a bonus, if your lawyer does thousands of cases just like yours every year. If your facts aren’t that unique, if the issues are identical to everyone else’s, and he knows what he’s doing, then it might be okay.

But what if your case isn’t the same as everyone else’s? If your case has unusual facts, unique issues or tricky questions of law… sorry, but this lawyer just doesn’t have time to deal with it effectively — if he was even able to break from routine enough to spot the issue in the first place. He just can’t afford to do the work your case requires. If he takes time away from his other cases to put in the hours your case needs, then he risks committing malpractice in those other cases. He’s more likely just to put in the minimum effort on your case.

Don’t take our word for it. This is exactly the argument that court-appointed lawyers make when they ask for higher fees: Such a lawyer needs to take on so many cases at the existing rates that he flirts with malpractice just to make a living.

Identifying traits: Malnourished. Sleepless, red eyes. Tends to recite courtroom litanies in his sleep.

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7) The Showoff

Here’s another one that seems fine at first glance. He seems great! After all, he told you so himself. The Showoff likes to brag and boast and bluster about how amazing he is. He may wear too-expensive suits, and unnecessarily showy jewelry. He knows everyone, as he’s sure to let you know. And he may be pretty well-known himself. In fact, one of the most dangerous places in town is any spot between him and a TV camera.

But behind the boasts, there is no substance. The Showoff is just an empty suit.

But how can you tell if someone’s just a Showoff? After all, there’s nothing wrong with bragging. We all do it, and clients like to know that they’re hiring someone with experience. And it’s good and proper to dress as well as one can. And there are plenty of well-known attorneys who have earned every bit of their fame.

The problem with the Showoff is, he just doesn’t have what it takes any more — if he ever did. He can’t live up to his own hype. He may have had the chops once, back when he was busy earning that reputation. Or maybe he just had some lucky breaks. But now he just can’t do the heavy lifting any more. You’ve been lured into thinking you’ve retained a superstar, and what you really have is nobody special.

Maybe it’s all the bragging and schmoozing and more schmoozing, so he doesn’t have the time to master the facts and issues of your case. Maybe it’s just that he’s coasting, and doesn’t realize he ought to be working harder. Whatever the reason, you’re not getting superstar representation. He doesn’t know the law like he should. He hasn’t learned the facts. He hasn’t grasped the complexities. He’s not prepared, and it shows. And that’s just deadly.

Identifying traits: Talks more about himself than about your case. Tendency to sell past the close. Slick as a phony politician.

The Supreme Court this morning ruled that it’s a violation of the Sixth Amendment’s Confrontation Clause for the prosecution in a drug case to simply admit a sworn lab report, without the chemist’s testimony, to prove that the drugs were controlled substances.

This is what we predicted, of course, making us 3 for 4 for the final four criminal decisions of the term.

It was no suprise to see that Scalia wrote the majority opinion here in Melendez-Diaz v. Massachusetts. Scalia has long been the Court’s main champion of the Confrontation Clause. But it was surprising to see Kennedy not only rounding out a 4-Justice dissent, but writing the dissenting opinion.

* * * * *

In drug cases, the prosecution needs to prove that the drugs really are controlled substances. So chemists test the drugs, and write lab reports. To make the lab reports evidentiary, they’re sworn to by the chemists. It’s time-consuming to have chemists come to court to prepare or give testimony. So here in New York we typically see chemists testifying only at trial, not in the Grand Jury, where their sworn lab reports are introduced as self-authenticating records. In other states, like Massachusetts, the chemists never even testify at trial, and instead the prosecution relies solely on the lab report to establish that the drugs were drugs.

In the Grand Jury, there is no problem, because there is no right to confront witnesses there. But in the trial setting, there is a Sixth Amendment right to confront and cross-examine witnesses. Lab reports, of course, cannot be cross-examined. So the issue came up as to whether such lab reports are akin to testimony, in which case the Sixth Amendment would require that the chemist actually testify, so that there would be an opportunity for confrontation. Massachusetts believed that lab reports are not testimonial.

In today’s case, Melendez-Diaz was charged with selling cocaine, and at trial the prosecution merely submitted lab reports to show that the substance in question actually was cocaine. By a narrow 5-4 majority, the Supreme Court ruled that this was not enough, and that relying solely on the lab reports violated the Confrontation Clause.

* * * * *

Writing for the majority, Scalia started by hearkening back to the Court’s recent decision in Crawford v. Washington, 541 U.S. 36 (2004), which held that the Confrontation Clause guarantees the right to confront those who bear testimony against a defendant. If a witness does not appear at trial, then that witness’ other testimony against the defendant is inadmissible unless the defendant had the chance to cross-examine that testimony.

The Court in Crawford explicitly included affidavits and “other pretrial statements that the declarants would expect to be used prosecutorially.” Lab reports, opined Scalia, clearly fit that definition.

Lab reports are something that one would reasonably believe to be used at trial. Not only that, but under Massachusetts law, the sole purpose of the lab reports was to provide evidence for use at trial. “We can safely assume,” Scalia concluded, “that the analysts were aware of the affidavits’ evidentiary purpose, since that purpose — as stated in the relevant state-law provision — was reprinted on the affidavits themselves.”

Therefore, the lab reports are testimonial statements, and are therefore inadmissible unless the chemists testify at trial as well.

* * * * *

That pretty much ends Scalia’s substantive opinion. He’s finished by page 5. There are a lot more pages to come, however, because he’s only now starting to have fun. He opens this next section with a roaring salvo against the Chief Justice and Justices Alito, Breyer and Kennedy:

We must assure the reader of the falsity of the dissent’s opening alarum that we are “sweeping away an accepted rule governing the admission of scientific evidence” that has been “established for at least 90 years” and “extends across at least 35 states and six Federal Courts of Appeals.”

Scalia then demonstrates that every presumption inherent in those statements is simply false. After a few paragraphs of this, he says “we turn now to the various legal arguments raised by respondent and the dissent.”

There simply isn’t time to go into each of the arguments in detail. Suffice it to say that it is entertaining reading. Feel free to look at it yourself here.

Here’s a quick summary, however, of the points he makes:

1) Chemists are too “accusatory” witnesses. Their evidence is used for the purpose of inculpating defendants.

2) Chemists are witnesses like any other witness. They made observations and drew conclusions, which are now being presented in evidence.

3) Chemist reports are not automatically trustworthy and reliable on their face. They are the records of tests and observations made by human beings. Defendants need an opportunity to assess how reliable those tests and obervations happen to be. Chemists sometimes get things wrong.

4) Chemist reports are not automatically neutral or immune from the risk of manipulation. Chemists work for the police, and they also sometimes have pressures to sacrifice appropriate methodology for the sake of expediency. Chemists sometimes get things wrong.

5) Chemist reports don’t fall within the business-record exception to the hearsay rule, because the regularly conducted business activity here is the production of evidence for trial. They don’t have the same reliability as regular business records kept for neutral purposes.

6) Just because the defendant could subpoena and call the chemists as witnesses doesn’t mean the State has any less burden to do so itself. The Confrontation Clause does not shift the burden of proof to the defense.

7) Requiring chemists to testify at trial will not create an undue burden on states. States with large caseloads already do so, without any undue burden.

Most of these conclusions were telegraphed at oral argument, but it’s fun to read Scalia deal with each one in his own way.

* * * * *

It’s also fun to read the dissent fight back against Scalia here. But again, we’ll let you read it yourself.

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.