The Criminal Lawyer

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.

The Supreme Court took on five Fourth Amendment cases this term. Four have been decided, and the fifth was argued on Tuesday. Although it may be premature to do so before the last decision comes down, we think it’s safe to draw some conclusions about the Court’s jurisprudence here, and predict what it might mean for the course of criminal justice.

The Fourth Amendment protects citizens against unreasonable searches and seizures. Like most other protections in the Bill of Rights, the whole point is to ensure that the State does not use its awesome power to override the necessary liberties and free will of individuals in a just society. The Bill of Rights prohibits the government from limiting ideas and their expression, from preventing individuals from arming themselves, from forcing soldiers into people’s homes, from extracting confessions by means that override the individual’s free will, from conducting secret “Star Chamber”-like trials or otherwise deny fair trials to defendants, from imposing indecent punishment, etc. If you sum up all the injustices that individuals face under medieval or tyrannical rule, the Bill of Rights pretty much says the U.S. government shall not do such things.

“Unreasonable” search & seizure basically means that, as a baseline, police ordinarily need to get a warrant first, by proving to a judge that they are more likely than not to find what they’re looking for, and that they’ll find it in the place they plan to look. There are exceptions to the warrant requirement, of course. Most searches don’t take place pursuant to a warrant, but under one of the exceptions.

If a person consents to a search, then no warrant is needed. Neither is a warrant needed if there is good reason to believe that evidence is going to be lost, or someone’s going to get hurt, if the cops take the time to get a warrant. There are various other exceptions.

The devil is in the details, of course. So the more exceptions you carve out from the general rule, the more room for error you create, and the more gray areas of confusion can pop up. Over the past few decades, various Fourth Amendment exceptions have indeed created confusion, gray areas, and absurdities.

The Supreme Court has taken the opportunity this term to attack those confusions, gray areas and absurdities head on.

On Tuesday, the Court ruled in Arizona v. Gant with respect to vehicle searches. (We reported on this here.) Back in the 60s, a warrant exception was carved out for searches of an individual and his “wingspan” — the area in his immediate reach — pursuant to a lawful arrest. The purpose was to ensure the safety of the officers and to preserve evidence. So long as the arrest was lawful, the search was lawful. Fast-forward to just after Reagan’s first swearing-in, when the Court expanded the search-incident-to-lawful-arrest to include the search of the passenger compartment of a car in which the arrestee had been riding.

Almost immediately after that ruling, everyone started to get the idea that cops could search the passenger area even after everyone was out of the car. The “wingspan” concept was lost, and instead a bright-line rule arose that, if the cops arrested someone who had been inside a car, then that car could be searched, period. Even after that person had long ago left the scene.

Some policy-makers like bright-line rules, because they require no thought. Individual circumstances need not be considered. An action that might not make sense, upon casual reflection, is still taken, because that’s the rule. If you don’t trust people to be able to weigh circumstances reasonably, then you give them bright-line rules.

And so it was that the police in Gant found themselves searching his car. Gant had already been arrested, handcuffed, and locked in a police cruiser, so the interior of his car was certainly no longer within his reach. So there was no reason to believe that he could destroy any evidence in the car or use something in the car to hurt the police. And he had been arrested for driving with a suspended license, not the kind of crime involving physical evidence, so there was no reason to believe that any evidence of that crime would be found in the car. In fact, the cops admitted on the stand that the only reason they search the car after the arrest was “because the law says we can do it.”

That was absurd. It’s an absurdity that just sort of happened, too. Nowhere in the 1981 Belton case did the Court lay out a bright-line rule. But that rule became the common interpretation, and has been the common interpretation for a quarter of a century.

On Tuesday, however, the Court finally stepped in to undo the absurdity. In a narrowly split 5-4 decision, the Court ruled that the police are not allowed to search a car simply because they made an arrest. The bright-line rule was thrown out the window. Interestingly, the case made for strange bedfellows. Contrary to popular expectation, Scalia and Thomas joined the pro-defendant side, and Breyer joined the pro-government minority. Scalia, in fact, felt that the majority opinion didn’t go far enough to limit the government’s power to search a car after an arrest.

The dissent essentially boiled down to a version of stare decisis — the common interpretation has been around for so long, that it has become the law of the land, and should be treated as such. That’s an interesting, but flawed, rationale. Stare decisis has to do with longstanding judicial precedent, not with some sort of jurisprudential adverse possession. Common practice does not equal legal precedent. Just because nobody has bothered to claim till now that the common interpretation was wrong, that doesn’t mean that nobody ought to be able to claim that now.

Anyway, the rule now is that the bright-line rule is no more. Cops can only search the passenger compartment if they have reason to believe — on a case-by-case basis — that the arrestee can still gain access to the car or that the car contains evidence of the crime for which he had been arrested. They can’t go looking just because the guy was arrested. They can’t go looking for evidence of other crimes. (They can still, however, either get a warrant, or impound the car and do an inventory search.)

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Argued the same day as Gant was decided was Safford Unified School District v. Redding. This also has to do with bright-line rules, in a way.

For context, the oral arguments were made almost to the day on the 10th anniversary of the Columbine shootings. Ten years ago, a couple of juvenile delinquents killed 12 people in a high school, the worst such violence that the U.S. has ever seen.

Due to the resulting hysteria and misinformation about the events, schools nationwide began passing bright-line “zero tolerance” rules out of fear that similar crimes might happen to them. Although it is now known that the killings were totally random, there arose a misconception that the killers sought out specific categories of victims. This led to panicked overreaction whenever a kid was found to have identified people in the school that they didn’t like. In fact, the killers wanted to kill everyone, setting (faulty) bombs to go off in the cafeteria (the fact that nobody every mentions the totally obvious similarities to the plot of the 1988 movie “Heathers” is beyond us).

Zero tolerance policies resulted in the expulsion of even little kids for bringing anything remotely resembling a weapon to school. Even when doing so was clearly absurd, as with water pistols, plastic army men, miniature toys, eating utensils, and the like.

Zero tolerance policies went after anything that might even slightly imply to the most paranoid hysteric an imaginary threat of unlikely harm to students or teachers. This included little girls hugging (because touching without permission can sometimes be a bad thing, all touching must be bad!). It included bringing a cake knife to school to cut a cake one had also brought to school.

And drugs are bad, by definition. So zero-tolerance included bringing any drugs to school. Passing out Tylenol can get kids expelled. It’s serious!

These bright-line zero-tolerance rules are imposed because school administrators are afraid. They’re afraid of their students. And they’re afraid of having to act rationally on a case-by-case basis. So they just over-react to everything, and establish bright-line rules so they don’t have to think.

And so we have Safford Unified School District v. Redding.

In Safford, we have a middle school (also in Arizona), where school authorities caught a 13-year-old girl with (gasp!) prescription-strength ibuprofen. This was a zero-tolerance school, and even though there is no way that ibuprofen counts as a dangerous drug, it was a bright-line prohibited medicine. So this girl was in serious trouble.

The girl (gasp!) pointed the finger at someone else. She said that another girl, Redding, had given her the medicine.

School officials have the authority to preserve the health and safety of their students. Most would say they even have the responsibility to do so. So it is not suprising that the school investigated the culprit’s claims.

Without taking the time to get a warrant, and acting only on the say-so of the girl they actually caught with the medicine, school officials searched Redding’s backpack, and found nothing. Then they took Redding to the nurse’s office, and searched her outer clothing. Nothing. Then they had her stretch out her bra and panties, exposing her breasts and genitals. Nothing. They shook out her underclothes, and her body was inspected by the nurse and another school official. Nothing. Then they put her in the principal’s office, and left her there alone for a few hours, without calling her mother or anyone else. No drugs of any kind were found during all this searching, and nobody else was strip searched.

Redding sued, claiming that her Fourth Amendment rights had been violated when she was subjected to this strip search.

The school district seeks a bright-line rule that permits strip searches whenever a school has reason to suspect that a student has prohibited contraband on them. At the same time, and without appearing to notice the inherent hypocrisy, they argue that the courts should not second-guess the judgement of school officials. Here, they had a reason to suspect Redding, and that should be enough to let them strip search her.

Now, if the Court is inclined to lay down a bright-line rule at all here, that surely is not going to be the rule they impose. There is no way the Court is going to let school officials make an unreviewable decision as to whether there’s reason to conduct a given strip search or not.

Instead, they’d probably impose a bright-line rule requiring first that there be sufficient credible evidence — first, that this student has drugs in the first place; and second, that the drugs are concealed in the private regions of the student’s body.

But then, in addition to an evidentiary requirement, they’d probably have to include a proportionality requirement as well. The Court is unlikely to permit extraordinarily invasive searches for contraband that poses no real threat. Strip searches for plastic toys would be within the realm of lawful possibility, otherwise.

But if your bright-line rule requires weighing evidence on a case-by-case basis, and weighing proportionality on a case-by-case basis, then it really isn’t a bright line at all, is it?

No, we’re going to go out on a limb here and predict that the Court will reject any bright-line rule, and instead impose a balancing test. A good rule will require that strip searches are only allowed when there is credible evidence that the student is concealing contraband in or on her private body parts. Not just the say-so of another student trying to direct blame onto someone else.

And a good rule will require that a strip search be proportionate to the danger. It’s more reasonable if the kid’s believed to have explosives strapped to his body (a la Christian Slater in “Heathers”), or a weapon in his underwear, or decks of heroin in his nether regions. It’s not so reasonable if the kid’s only believed to possess a toy, or harmless medicine, or even a list of kids he doesn’t like.

A good rule will be fact-specific, and will require schools to actually exercise good judgment. A rule that lets them just act without thinking would be contrary to the direction this Court seems to be taking with its Fourth Amendment cases.

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That leads us to the third Arizona case in this term’s Fourth Amendment decisions. On January 26, Justice Ginsburg wrote a unanimous decision for the Court in Arizona v. Johnson (which we wrote about here).

In Johnson, the Court clarified that a police officer can do a pat-down search, feeling someone’s outer clothing for weapons, if the officer has reason to believe that the person is armed and poses a threat to safety. The police don’t lose that ability to protect their own safety when other circumstances change.

Ginsburg pointed out that this really shouldn’t have been a point of confusion. A long line of cases, starting with Terry v. Ohio, clearly say cops can pat someone down for weapons if they have reason to believe the person’s armed and dangerous. And yet there obviously was confusion, evidenced by the Johnson case itself.

In Johnson, a female officer with gang experience was involved in a traffic stop. Before the stop, she had no reason to believe the passengers had committed any crimes. But during the stop, she saw things that led her to believe that one of the passengers was a gang member. She talked to him about things unrelated to the reason for the traffic stop, and some of the things he said led her to believe that he was armed and dangerous. So she asked him to step out of the car, to talk about things out of earshot of the other suspected gang members, then patted down his clothing and found a gun in his waistband. The passenger was later convicted of possessing the gun.

The Arizona Court of Appeals ruled that the officer lost her authority to pat him down once she started talking to him about matters unrelated to the traffic infraction. Even though she had reason to believe he was armed and posed a threat to her, the fact that she had talked to him about other things erased her ability to pat him down for her own protection.

The unanimous Supreme Court cleared that right up. The passenger was already seized, and not free to leave. The fact that he was being asked questions about other things didn’t change that. And the officer did have reason to suspect that he was armed and dangerous, and the topic of conversation didn’t change that.

Now in one respect, this is a bright-line rule. And as we pointed out in our previous post, we have problems with this bright-line rule, insofar as it has to do with whether a person involved in a traffic stop is free to leave. Under the Court’s rule, the answer is simply no, until the stop is over or the police let him go.

But the meat of the decision is not a bright-line rule. It is yet another case-by-case analysis: did the officer have reason to believe there was a weapon and that she could be in danger? The ruling simplifies the analysis by removing other considerations from the equation, as being irrlevant. The bright-line issue of whether someone is seized or not really has nothing to do with the core issue. And the Arizona court’s issue of whether the conversation has switched topics is beyond irrelevant.

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The fourth case this term was Herring v. United States, which had to do with the exclusionary rule. (We wrote about this decision here.)

In Herring, the Court ruled that the exclusionary rule doesn’t apply when a policeman acts on flawed information from law enforcement in the next county. Herring, a character who’d had several run-ins with local law enforcement in Alabama, went to get his truck out of impound. The officer ran a check to see if any warrants were outstanding for him. There was a hit for an outstanding warrant in the next county. Herring was arrested on that warrant, and drugs were found. It turned out that the neighboring county’s records were erroneous, and there wasn’t any warrant.

Writing for the narrow 5-4 majority, Chief Justice Roberts ruled that the error was too separate from the search and seizure of the drugs. The officer who conducted the search didn’t have anything to do with the error, and it would be pointless to attribute it to him. Thinking of the exclusionary rule as a rule of deterrence, Roberts said it should only apply when excluding seized evidence would deter wrongful conduct. So the police conduct would have to be sufficiently deliberate that it could be deterred. And the conduct would have to be sufficiently wrongful to be worth the loss of evidence.

It’s easy to see where the majority was going here. It’s common for people to think of the exclusionary rule as balancing, on the one hand, our concern for protecting individuals against unlawful government intrusions, against our concern against “letting people off on a technicality” on the other hand. So here, the arresting officer wasn’t being negligent. He acted totally reasonably, relying on a criminal justice database. Excluding this evidence wouldn’t deter future reliance on criminal justice databases, and we actually don’t want that kind of reliance to be deterred in the first place.

But that common way of thinking really is a misconception. The exclusionary rule is not a rule of deterrence. And thinking of it that way can lead to confusion.

The exclusionary rule is the typical remedy for police violation of Fourth Amendment rights, by suppression of the evidence that would not have been gathered but for the violation. This 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 be deterrent — it 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 evidence they got by crossing the line. The get to keep the other evidence.

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, and the Supreme Court itself did so here.

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The last case is Pearson v. Callahan, decided on January 21. It involved Utah police officers who conducted a warrantless search of a home. There were no exigent circumstances. Instead, they thought their conduct was lawful under the “consent once removed” doctrine.

This is a legal doctrine that had been gaining traction out west (and in New Jersey) since the early 1980s. The way it worked here was, they flipped a suspect into an informant. Then they sent the informant to his drug spot, the defendant’s home. The informant was invited in, saw drugs, and went back to tell the cops what they’d seen. The defendant had consented to allow the informant into his home, and that consent was deemed transferred to the cops, as “consent once removed,” and so the defendant was deemend to have consented to the police entry into his home. Under that doctrine, he’d consented, so they didn’t need a warrant.

The cops were sued, and the issue was whether they had qualified immunity here. The Court’s unanimous decision, written by Justice Alito, mostly dealt with a procedural issue raised sua sponte. But in the end they briefly mentioned the underlying issue of whether the police acted lawfully here.

The test for qualified immunity was whether the unlawfulness of the officers’ action was clearly established at the time of their actions. If it was clearly unlawful, then they did not have qualified immunity.

As it happened, however, there was a line of cases that instead established that this kind of “consent once removed” search was fine back in 2002, at least out west. So the police were entitled to qualified immunity.

Disappointingly, the Court did not deal with the issue of whether this kind of attenuated consent is actually proper now in 2009. So there’s really no meat to this decision, which is why we saved it for last.

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All in all, it looks like the Court is shying away from any judicial activism here. Rather than creating broader interpretations of individual rights, or establishing greater police powers, the Court is focusing on clarifying existing rights and powers. And instead of expanding the existing rules, the Court is simply trying to rein in misconceptions and absurdities.

Part of that trend seems to be the relaxing of bright-line rules. Bright lines are great when you don’t want people to have discretion, when you don’t trust them to think, or they’re not trained to understand the issues. You get some efficiency that way. But in real life, facts don’t always fit within those lines, and an unthinking application of bright-line rules will sometimes result in injustice. This Court seems to be moving away from the seeming mass efficiencies, in favor of individual justice.

Well, we like that very much.

In a stunning 5-4 decision, the Supreme Court today reversed its longstanding bright-line rule which had permitted warrantless car searches after an arrest, even when there was no concern for officer safety or the preservation of evidence. The case is Arizona v Gant.

Writing for the majority in this important decision, Justice Stevens held that the police may only search the passenger compartment of a vehicle, pursuant to the arrest of a recent occupant, if it is reasonable to believe that the arrested person might access the car while it’s being searched, or that the car contains evidence of the crime for which that person was arrested.

Interestingly, the votes were contrary to common stereotype. The majority, which limited police powers, included the two most right-wing justices in the popular mind, Scalia and Thomas. The minority, which would have expanded police powers, included two fairly liberal justices, Kennedy and Breyer.

Rodney Gant was arrested for driving with a suspended license. After he was arrested, the police handcuffed him and locked him in the back of their cruiser. Once he was secured, the police then searched his car and found a jacket on the back seat. In a pocket of that jacket, they found some cocaine.

The trial judge in Arizona denied the motion to suppress, saying that the police are allowed to conduct such a warrantless search of a car incident to arrest. The police had seen Gant driving without a license, so the search was incident to a lawful arrest, and that was enough for the trial court. The Supreme Court, after all, had ruled in New York v. Belton, 453 U.S. 454 (1981) that a warrantless vehicle search incident to lawful arrest was proper. At the suppression hearing, one of the officers explained that the search was done “because the law says we can do it.”

This is actually the common interpretation of Belton. It is widely regarded (and reviled) as a bright-line rule. Stevens pointed out in today’s opinion that it “has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.” He added that “the chorus that has called for us to revisit Belton includes courts, scholars, and Members of this Court who have questioned that decision’s clarity and its fidelity to Fourth Amendment principles.”

The bright line has seemed only brighter in the past decade, however, especially after Whren v. United States, 517 U.S. 806 (1996), which held that the police could seize evidence in plain view within a car even after an arrest for a mere traffic violation, regardless of whether there was an ulterior motive in making the traffic stop. So the trial court’s ruling was not a surprise.

Despite the common interpretation, Gant appealed, arguing that Belton shouldn’t be read so broadly as that. It shouldn’t permit a search of the car when the arrestee poses no present threat to the officers. And it shouldn’t permit a search of the car when there is no way it could contain evidence of the crime for which he’d been arrested. There was simply no exigency that satisfied the policy underlying the Belton rule.

The Arizona Supreme Court agreed, and reversed. The Arizona Supreme Court found that Belton only had to do with how much searching could go on during a vehicle search incident to arrest, and did not have to do with whether such a search was permissible once the scene was secure. The Supreme Court of the United States had explained its underlying policy back in Chimel v. California, 395 U.S. 752 (1969), saying that the reasons justifying warrantless search incident to arrest is for the safety of the officers, and for the preservation of destructible evidence. In this case, those justifications did not exist at the time of the search.

The State of Arizona filed cert, arguing that the bright-line rule of Belton permitted the search, and that the common interpretation is the right one.

Writing for the majority, Stevens said that the bright-line rule, though the common interpretation, is the wrong interpretation. He saw that this came about because of an inappropriate reliance on Brennan’s dissent in Belton. Brennan had felt that the Belton rule created a legal fiction that the interior of a car is always within the immediate control of an arrestee, even when that person is no longer near the car at the time of the search.

Stevens acknowledged that this reading leads to absurd outcomes, including searched “incident to arrest” after the arrestee had long since left the scene.

To avoid such absurdity, the Court rejected the bright-line interpretation, and held that the underlying Chimel policy only authorizes vehicle searches incident to arrest “when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.”

The Court added a second condition when such searches are permissible, derived not from Chimel but from Scalia’s concurring opinion in Thornton v. United States, 541 U.S. 615, 632 (2004). (Yet another example of a concurring or dissenting opinion later becoming law of the land.)

This second condition is when, based on the individual circumstances, it would be reasonable to believe there is evidence relevant to the particular crime for which the suspect was arrested.

The bright-line rule has clearly been demolished, and replaced with a case-by-case analysis of the facts.

Now bright-line rules aren’t necessarily a bad thing, in and of themselves. There is a tradeoff between the necessity to account for the vagaries of real life, and the necessity for an easily-understood rule that police can follow. Both considerations are necessary for the protection of individual liberties. If the line is too bright, then law enforcement can ignore common sense and violate rights just because they can. But if the rule is too convoluted, to take into account all the vagaries of real life, then law enforcement won’t understand it, and risks violating rights by accident (or on purpose).

Stevens came up with a rule here that we think is easy enough to understand. The police can conduct a warrantless vehicle search incident to arrest if:
(1) the arrestee can still reach into the passenger compartment, or
(2) there’s reason to believe that the car contains evidence relevant to the crime he was arrested for. That’s not going to cause any confusion. Police officers and trial judges won’t have a hard time applying it.

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There has been a movement in American jurisprudence away from formalism and bright lines, toward balancing. Instead of emphasizing bright-line rules requiring warrants, or dispensing with the need, the courts have been leaning more towards whatever is reasonable under the particular circumstances. A judicial, backward-looking approach, rather than a legislative one.

This ruling clearly fits that trend.

Well, except for Scalia’s concurring opinion. This ruling is in large part a result of his Thornton concurrence, but his focus is still a legislative, forward-looking approach, at least with respect to the process of judicial interpretation. His first sentence begins: “to determine what is an ‘unreasonable’ search within the meaning of the Fourth Amendment, we look first to the historical practices the Framers sought to preserve…”

We find this concurrence to be almost as good a read as his dissents. He lays plain the absurdities of the bright-line rule, only hinted at by the majority opinion. He does acknowledge that the Founders weren’t thinking of this stuff at all. And he tears the dissent of fellow conservative Alito to shreds. But we’ll let you read it all for yourself.

For now, suffice it to say that a major case was decided today, and the ruling is a good one for defendants and law enforcement both.

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.

Voting 7-2, the Supreme Court today ruled that a defendant cannot appeal when the prosecution reneged on a plea bargain, unless the issue was preserved before the trial court.

In his majority opinion for Puckett v. U.S., Justice Scalia cleared up a split among the circuits. There had been differing opinions on whether this situation was one of the exceptions to the general rule requiring that issues be preserved below. He sort of signaled his take on the issue with his first sentence: “The question presented by this case is whether a forfeited claim that the Government has violated the terms of a plea agreement is subject to the plain-error standard of review set forth in Rule 52(b) of the Federal Rules of Criminal Procedure.”

The facts of the case are going to sound familiar to anyone who’s been doing criminal law for very long. The defendant was indicted for armed robbery, and negotiated a plea deal. As part of the deal, the prosecutors promised to tell the court that he “has demonstrated acceptance of responsibility and thereby qualifies for a three-level reduction…” But then, after the plea but before sentencing, the defendant got in trouble again, this time for a scheme to defraud the Postal Service. The prosecutors changed their mind, in light of this new information, and told the sentencing court that the defendant should *not* get credit for accepting responsibility.

The defense attorney called foul, and reminded the court of the terms of the plea agreement. The judge turned to the prosecutor, who dismissed it as having been written a long time ago, and the new crime changed the situation. The judge decided that he couldn’t grant a reduction, and wouldn’t even if he could, given the new crime. He did impose a sentence at the low end of the range, however.

“Importantly,” to Scalia, “at no time during the exchange did Puckett’s counsel object that the Government was violating its obligations under the plea agreement by backing away from its request for the reduction. He never cited the relevant provision of the plea agreement. And he did not move to withdraw Puckett’s plea on grounds that the Government had broken its sentencing promises.”

On appeal, the Fifth Circuit held that error had occurred, and it was obvious, but it did not cause prejudice, so it was not “plain error.” Basically, the defendant couldn’t demonstrate that his ultimate sentence would have been any different, whether the prosecution had recommended the reduction or not, given the judge’s disinclination to grant it in the first place.

But there was a conflict among the circuits as to whether the plain-error test applies to unpreserved claims of breached plea agreements. So the Supreme Court granted cert.

In finding that Rule 52(b) does apply to unpreserved claims of breached plea agreements, Scalia started with the principle that plain-error review is rightly the norm for unpreserved errors, because “anyone familiar with the work of courts understands that errors are a constant in the trial process, and that a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal.” Exceptions to the normal rule do exist, of course. But should this situation be one of them?

Everyone took it as given that the government had broken its agreement. The issue is whether, in the absence of an objection below, anything could be done about it on appeal here.

The defendant first argued conceptually that the government’s breach of the plea agreement made that agreement void, and so voided the guilty plea. Scalia pointed out that breaching a contract does not make the whole contract void and invalid from the first; the contract remains enforceable.

The defendant next argued that there was precedent in *Santobello*, where a broken plea promise was grounds for reversal in the interests of justice, even though the breach did not affect the judge’s decision and thus the error was harmless. Scalia countered that whether or not an error is harmless is not the issue here, which is whether the error can be subjected to plain-error review. In *Santobello*, moreover, the issue clearly had been preserved below.

The defendant then argued that applying Rule 52(b) makes no sense, because objecting to a plea breach is futile; the prosecution’s wrongful action cannot be undone. The judge will have heard the improper recommendation, and can’t unhear it. Scalia stated that requiring an objection prevents defendants from “seeking a second bite at the apple” after waiting to see if they like the outcome or not. Also, some breaches are curable. And those that aren’t can be remedied by the trial court, such as by withdrawal of the plea, or by resentencing before a different judge.

The biggest point the defendant raised was that plea breaches fall within “a special category of forfeited errors that can be corrected regardless of their effect on the outcome,” so that even if there was no prejudicial effect, there still ought to be a reversal.

Scalia responded by categorizing the exceptions that do exist: errors that “necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence,” or that “defy analysis by harmless-error standards by affecting the entire adjudicatory framework,” or which involve “difficulty of assessing the effect of the error.”

None of those considerations applied here, so Scalia decided that this situation just didn’t fit as an exception to the general rule.

Justice Souter, joined by Justice Stevens, dissented. Although the defendant wasn’t terribly sympathetic, and although they agreed that the plain-error test is the right one to apply here, the dissenters felt that the Court was looking at the wrong effects.

The majority (and apparently the parties, too) looked at the effect of the error as merely being the length of the sentence, which probably wasn’t affected here. Souter, in contrast, saw the effect as being “conviction in the absence of trial,” or in the absence of “compliance with the terms of the plea agreement dispensing with the Government’s obligation to prove its case.”

The criminal conviction itself, not the length of sentence, is the effect on substantial rights according to Souter. Due Process and fundamental fairness require, “before the stigma of conviction can be imposed,” either a trial or a plea agreement honored by the Government. “It is hard to imagine anything less fair,” he stated, “than branding someone a criminal… because he entered a plea of guilty induced by an agreement the Government refuses to honor.” Sentencing after the prosecution breached a plea agreement would always, by definition, be plain error.

Justice Souter’s approach is, of course, attractive to those who value the fairness and integrity of jurisprudence. However, it is hard even for this defense attorney to agree that all such sentences are necessarily plain error, especially when an adequate remedy (getting to take one’s plea back) is available if the defense attorney is paying attention.

Few would deny that 32 years is a long time to spend in jail. It’s a long time to spend on death row, as well. But is delaying the execution — particularly when the delay is caused by the convict’s own appeals — cruel and unusual punishment violating the 8th Amendment?

This issue has sparked a fierce debate among the justices of the Supreme Court, three of whom put their positions in writing this week. The Court itself punted the issue, which was brought by William Lee Thompson, declining to hear his claim that 32 years on death row was cruel and unusual. But Justices John Paul Stevens, Stephen Breyer and Clarence Thomas took their disagreement out of the conference room and put it on paper.

Justice Stevens has been trying to get the Court to take on this issue since 1995, when he wrote a memorandum statement arguing that, although novel at the time, the proposition was “not without foundation.” Lackey v. Texas, 514 U.S. 1045 (1995). The state’s interest in retribution, he then mused, might be satisfied by the uncertainties a prisoner must suffer during a lengthy delay of execution (though why he felt that retribution was a proper purpose of punishment in a modern civilized society is a whole nother topic). Any deterrent purpose would be negligible after such a delay, he argued, and any penalty with little marginal return would essentially be gratuitous, and therefore cruel and unusual. Stevens also pointed out that other countries’ courts had found similar arguments to be persuasive.

In his statement this week, Stevens pointed out that the average execution happens nearly 13 years after sentencing, adding that “to my mind, this figure underscores the fundamental inhumanity and unworkability of the death penalty as it is administered in the United States.”

However, he went on to say that the delays are mostly the result of judicial process. “Judicial process takes time, but the error rate in capital cases illustrates its necessity. We are duty bound to [ensure] that every safeguard is observed when a defendant’s life is at stake.” He concluded that “our experience during the past three decades has demonstrated that delays in state-sponsored killings are inescapable, and that executing defendants after such delays is unacceptably cruel.”

We’re no fans of the death penalty, but Stevens’ argument is a bit too much of a non sequitur, even for us. His argument is essentially: A) Delay is necessary to ensure justice in capital cases, and B) Delay sucks, if you’re the one on death row, so therefore C) Delay is unconstitutionally cruel and unusual. Which is the opposite of A. It doesn’t follow.

Stevens doesn’t need it to follow, however, because his ulterior motive is to find the death penalty itself unconstitutional. He says as much in his conclusion (quoting a previous opinion of his, which itself echoed his argument in the 1995 statement).

Justice Breyer has been pushing this issue almost as long as Stevens has, joining the cause in 1999 when he opposed denial of cert. in two Florida cases, Foster v. Florida, 537 U.S. 990 and Knight v. Florida, 528 U.S. 990. His statement in this week’s case can be found here.

Like Stevens, Breyer clearly had an ulterior motive for wanting to grant cert. He also agrees that delay is necessary to ensure justice in capital cases, and the defendant caused most of the delay in his case with apparently meritless appeals.

However, critically important to Breyer is the fact that a portion of the delay was spent on a meritorious appeal. The trial judge didn’t allow some evidence at the sentencing hearing, but was compelled to allow it at a new hearing. The defendant got the same sentence of death.

Breyer’s argument is that the delay involved in the meritorious appeal was unconstitutionally cruel and unusual, because the appeal would not have happened but for the sentencing judge’s error, which is state action. The delay involved in the meritless appeals is a necessary safeguard of the criminal justice system, and is just fine.

Seriously, that’s his argument. Read it yourself. What Breyer really wanted was to undo the death sentence itself, which he felt wasn’t really deserved here.

So what about Justice Thomas? He took the other side, arguing the 32 years were spent in appellate litigation brought by the petitioner. He caused the very delay of which he now complains. He used a quote from Mike Luttig to make the point: “It makes a mockery of our system of justice . . . for a convicted murderer, who, through his own interminable efforts of delay . . . has secured the almost-indefinite postponement of his sentence, to then claim that the almost-indefinite postponement renders his sentence unconstitutional.”

Thomas felt that ulterior motives should not undercut the decisions of three separate juries, each of which held that the petitioner should be executed for kidnapping and horribly torturing a woman to death. The Constitution permitted the death penalty, and it was “the considered judgment of the people of Florida” that it was warranted here.

So all three justices seem to tacitly admit that the Supreme Court will take on a case, even if the arguments presented aren’t the right arguments, if it feels there is some other injustice that needs to be cured. Stevens and Breyer wanted to take on this case, because they felt the death penalty shouldn’t have been imposed — Stevens because he thinks it should never be imposed, and Breyer because he thinks the petitioner wasn’t as guilty as his co-defendant, who didn’t get the death penalty. Thomas didn’t see any injustice, so didn’t need to overlook the defendant’s chutzpah, though his dwelling on the merits of the sentence indicate that he might have done so in another case.

As of now, there is still no “Chutzpah Defense.” But don’t be surprised if some enterprising defense attorneys don’t craft some new versions of that argument, inspired by these three opinions.

18 U.S.C. § 1346 expands the definition of mail & wire fraud to include “a scheme or artifice to deprive another of the intangible right of honest services.” That’s short and sweet, but what does it mean?

The courts have been left to define the crime for themselves. Unfortunately, they differ wildly in what the theft of honest services means. The Fifth Circuit says it’s only a crime if the deprivation of services was also a crime under state law. The Seventh Circuit says the crime is when someone abuses their position for private gain. The Third Circuit says gain is irrelevant.

In general, they agree that employees and public officials have a duty to act only in the best interest of their employers and constituents. But there are lots of ways to act otherwise, and the courts seem to agree that not all of them ought to be criminalized. There is a spectrum of behavior, ranging from the socially acceptable to the abhorrent. Where the line ought to be drawn is undefined and uncertain.

So the Supreme Court finally had a chance to clear it all up, define what “honest services” means, and give straightforward guidance to the courts and to all the employees and officeholders out there. Sorich v. United States, No. 08-410 came to the Supremes on a cert petition, asking them to define the crime and settle the issue at last. That’s what the Supreme Court likes to do, after all — if the circuits can’t agree, it the Court’s job to define the correct approach.

Instead, the Supremes punted, and denied cert.

Scalia wrote an intense dissent, pointing out that this is precisely the kind of issue that the Court ought to resolve, that the split among the circuits is causing confusion in the law, and that real injustice is resulting. “It seems to me,” he wrote, “quite irresponsible to let the current chaos prevail.” We can’t help but agree.

“If the honest services theory… is taken seriously and carried to its logical conclusion,” Scalia pointed out that all kinds of actions would be criminal. Not all ought to be. “A state legislator’s decision to vote for a bill because he expects it will curry favor with a small minority essential to his reelection,” a perfectly normal and expected aspect of electoral politics, would be a federal crime. “A mayor’s attempt to use the prestige of his office to obtain a restaurant table without a reservation,” a perhaps obnoxious act, but one hardly worthy of punishment, would also be included. “Indeed, it would seemingly cover a salaried employee’s phoning in sick to go to a ball game.”

“What principle it is that separates the criminal breaches, conflicts and misstatements from the obnoxious but lawful ones, remains entirely unspecified.” Failing to define what the crime actually means invites unjust prosecutions by “headline-grabbing prosecutors.” Furthermore, nobody knows if their actions would be considered criminal or not, and “it is simply not fair to prosecute someone for a crime” that won’t be defined until the judge’s ruling that sends him to jail. “How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?”

Scalia closed with an excellent dictum, quoting from another useful dissent — that of Hugo Black in Green v. United States, 365 U.S. 301, 309 (1961) — “Bad men, like good men, are entitled to be tried and sentenced in accordance with law.” It is truly unfortunate that the Supreme Court has passed on an excellent opportunity to ensure just that.

On Monday, a unanimous Supreme Court reiterated its rule that a police officer may pat down the passenger of a car that was stopped for a traffic infraction, if the officer has reason to believe the passenger is armed and dangerous. The Court also added that the authority to conduct a patdown doesn’t end when police start asking about matters unrelated to the traffic stop.

Writing for the Court in Arizona v. Johnson (No. 07-1122), Justice Ginsburg pointed out that this is not exactly new law. Pennsylvania v. Mimms, 434 U.S. 106, held that police are allowed to ask the driver of a car to get out, after a lawful traffic stop. The interest in officer safety outweighed the “de minimis” additional intrusion of having the driver exit the car. Then, once the driver is out of the car, Terry v. Ohio, 392 U.S. 1, says he can be patted down if there’s reason to believe he’s armed and dangerous.

Maryland v. Wilson, 519 U.S. 408, said that the Mimms rule applies to passengers the same as to drivers. Passengers and drivers both have the same incentive to avoid being arrested for more serious crimes than the traffic violation, and have the same incentive to use violence to avoid such arrest. The interest in officer safety again outweighed the “minimal” additional intrusion of being asked to exit the car. Everyone’s already been seized, essentially, by the car stop.

Here, Officer Maria Trevizo, of Arizona’s gang task force, was part of a car stop for driving with a suspended registration. At the time of the stop, she had no reason to suspect any of the passengers of a crime. However, on approaching the car, she saw that the passenger Lemon Johnson wore Crips clothing, and had a police scanner sticking out of his pocket. When asked to identify himself, Johnson said her was from Eloy, Arizona, which Trevizo knew was a Crips gang location. Johnson also said he’d done prison time for burglary.

Trevizo wanted to ask more questions out of earshot of the others in the car, to see if she could get any info about the gang Johnson might have been in. So she asked him to get out of the car. Her observations so far, plus his statements, gave her reason to think he might be armed, so when he got out she started to perform a Wilson frisk. When she found a gun in his waistband, Johnson started fighting with her, and she handcuffed him. Johnson was later convicted at trial of, among other things, possession of a weapon by a prohibited possessor.

The Arizona Court of Appeals reversed his conviction, holding that Trevizo’s authority to pat him down ended when she started asking about matters unrelated to the traffic stop. Yes, he was initially detained pursuant to the traffic stop, but then the encounter devolved into a consensual conversation. As Johnson was no longer technically seized by the car stop, the police no longer had authority to conduct a patdown.

The Supreme Court held that the Arizona court got that wrong. Nothing ever happened that would have given Johnson reason to believe he was free to leave without police permission. He was seized by the car stop, and a reasonable person would understand that throughout the time the car is stopped, he isn’t free to just walk away. The mere fact that Johnson was being questioned about non-traffic-related matters wasn’t something that would change that understanding.

Moreover, the Arizona ruling just didn’t make sense. If it was to stand, then an officer who asked a passenger to step out of the car would have to first give the passenger a chance to walk away, before being allowed to pat him down. “Trevizo was not required by the Fourth Amendment to give Johnson an opportunity to depart without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her.”

Other writers out there are seeing this ruling as a travesty, another nail in the coffin of Fourth Amendment protections. Over at Simple Justice, for example, the mere reiteration of the existing Wilson rule is called “the evisceration of rights by baby steps.” It’s clear that such writers simply disagree with the greater value the courts have placed on officer safety, as opposed to the freedom from being patted down. Those are their values, and we can’t fault that.

But critics such as these are missing the real point of the case, which is that a traffic stop never devolves to a lesser encounter until either the traffic stop is over, or until the police say so. To us, this seems to be a far more troubling bright line. Certainly, situations can be envisioned in which a passenger would reasonably believe that he was free to leave, even though the stop wasn’t over and the officer might disagree.

We, for example, once took a cab to an important meeting across town. The cab driver, playing to type, showed a remarkable ignorance of the workings of a motorized vehicle, as well as the difference between the street and the sidewalk. One of New York’s finest swiftly stopped the cabbie before anyone (including us) got hurt. While the officer dealt with the cabbie, we simply walked away and caught another cab. Under this new ruling, however, it would have been appropriate for the officer to stop us. The officer could then even frisk us, if he thought the wallet in our suit jacket was a suspicious bulge.

That’s what you get with bright-line rules, though. One the one hand, you get the efficiency and most-of-the-time fairness of an easy rule for officers to remember and follow. But on the other hand, you lose case-by-case judgment, and wind up with exceptional situations of authorized injustice. Yet another pair of considerations for the ongoing balancing test that is the law.

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!

Richard Dieter, executive director of the Death Penalty Information Center, has suggested to the Washington Post that the Supreme Court may be getting ready to review “whether the death penalty is applied in a discriminatory discriminatory way, an issue the Court has not taken up for two decades.”

Dieter drew this conclusion from the Supreme Court’s denial of cert. yesterday in the capital punishment case Walker v. Georgia. As we pointed out recently, the Supreme Court has taken to using denials of cert. for raising questions on capital punishment.

The issue here is how thorough a court’s proportionality review must be, to ensure that a death sentence is not based on arbitrariness or discrimination. Justices Stevens and Thomas concurred with the denial of cert., but gave strongly opposed written opinions.

Stevens, the more liberal of the two, stated that Walker’s case was “troubling,” because it involved a black killer and a white victim. Numerous studies over the years have shown that black defendants are much more likely than whites to be charged with capital crimes, regardless of the race of the victim, but that capital crimes are also much more likely to be charged when the victim is white, regardless of the race of the killer.

Stevens felt that the Georgia Supreme Court wholly ignored its job, and only performed a perfunctory review of proportionality. It merely cited 21 similar death sentences and said that was good enough. The court didn’t describe or compare the facts of those cases, which differed in heinousness.

Thomas, on the other hand, said that Stevens was “simply wrong.” “There is nothing constitutionally defective about the Georgia Supreme Court’s determination. Proportionality review is not constitutionally required in any form.” Georgia has chosen to do some kind of proportionality review, and that’s fine, but the Supreme Court has never required that it do so. If Georgia wants to administer its own additional rule in its own way, that’s up to Georgia.

Thomas, the more conservative of the two, pointed out that the Court already looked at all of the arguments Stevens raised, and rejected them in McCleskey v. Kemp, 481 U.S. 279 (1987).

The fact that these arguments are being raised in written cert. opinions, however, is certainly giving some folks reason to believe that the Court may be interested in looking at them again, should the right case come its way.