Sunday, October 27, 2013

Government Notifies Defendant of Warrantless Wiretap, Tees Up Challenge

The Department of Justice for the first time notified a criminal defendant that evidence against him was obtained through a warrantless wiretap, according to the New York Times.  The move gives the criminal defendant the standing to challenge warrantless wiretapes that the plaintiffs in Clapper v. Amnesty International lacked and invites his challenge of warrantless wiretaps.  Our previous post on the issue is here.

The defendant, Jamshid Muhtorov, is charged with "provid[ing] and attempt[ing] to provide material support and resources, to wit: personnel . . . to a foreign terrorist organization, specifically the Islamic Jihad Union . . . knowing that the organization was a designated terrorist organization, that the organization had engaged in and was engaging in terrorist activity and terrorism, and the offense occurred in whole or in part within the United States" in violation of 18 U.S.C. Sec. 2339B.  The notice says that the government

hereby provides notice to this Court and the defense, pursuant to 50 U.S.C. Secs. 1806(c) and 1881e(a), that the government intends to offer into evidence or otherwise use or disclose from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 . . . .

The Supreme Court held that the plaintiffs in Clapper lacked standing to challenge warrantless wiretaps, because they couldn't show that they'd been, or would be, wiretapped under the specific statutory authority they sought to challenge.  Now that the government has disclosed that its evidence resulted from warrantless wiretaps, Muhtorov has clear standing to challenge the wiretaps. 

This merely puts the legality of the wiretaps before the courts; it doesn't answer the underlying question.  For that, we'll have to await the ruling and appeals.

October 27, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Criminal Procedure, Fourth Amendment, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 22, 2013

Georgia Supreme Court Upholds Constitutionality of Solicitation for Sodomy Statute - As "Narrowly Construed"

The Supreme Court of Georgia has upheld the constitutionality of the state statute criminalizing the solicitation of sodomy, even as it narrowly construed it, and even as it reversed the conviction based upon insufficiency of the evidence.

HunsteinIn its 12 page opinion in Watson v. State, Justice Carol Hunstein (pictured right) writing for a unanimous court, reaffirmed two of the court's previous decisions:

  • Powell v. State (1998), limiting the construction of the sodomy statute pursuant to the "fundamental privacy rights under the Georgia Constitution" and
  • Howard v. State (2000), upholding the sodomy solicitation statute against a free speech challenge by  narrowly construing "the solitication of sodomy statute to only punish speech soliciting sodomy that is not protected by the Georgia Constitution's right to privacy."

 Thus, the rule the court articulates is that

an individual violates the solicitation of sodomy statute if he (1) solicits another individual (2) to perform or submit to a sexual act involving the sex organs of one and the mouth or anus of the other and (3) such sexual act is to be performed (a) in public; (b) in exchange for money or anything of commercial value; (c) by force; or (d) by or with an individual who is incapable of giving legal consent to sexual activity.

Under this redefined "scope of the statute," the court then finds that Watson's actions did not satisfy any of the possibilities required by the third element: it was not to take place in public, it was not commercial, was not by force (although Watson was a police officer) and was not to a person incapable of giving consent (although solicited person was 17, the age of consent in the state is 16).  In addition to reversing the conviction for solicitation of sodomy, the court reversed the conviction for violation of oath of office (of a police officer) that rested on the solicitation conviction.

While the Georgia Supreme Court's opinion is correct, redrafting a statute that remains "on the books" for prosecutors, defense counsel, and perhaps even judges who are less than diligent can result in a denial of justice.

The better course would have been to declare the solicitation of sodomy statute unconstitutional, requiring the legislature to do its job and pass a constitutional statute.  This was the option followed by the New York Court of Appeals - - - New York's highest court - - - when presented by a similar issue in 1983.  Having previously declared the state's sodomy statute unconstitutional in People v. Onofre (1980),  when the court was presented with a challenge to a prosecution under the solicitation of sodomy statute, the court in People v. Uplinger stated:

The object of the loitering statute is to punish conduct anticipatory to the act of consensual sodomy. Inasmuch as the conduct ultimately contemplated by the loitering statute may not be deemed criminal, we perceive no basis upon which the State may continue to punish loitering for that purpose. This statute, therefore, suffers the same deficiencies as did the consensual sodomy statute.

The United States Supreme Court granted certiorari in Uplinger, and then dismissed certiorari as improvidently granted, in part because of the intertwining of state and federal constitutional issues and in part because there was not a challenge to the underlying decision that held sodomy unconstitutional, six years before Bowers v. Hardwick, the case in which the United States Supreme Court upheld Georgia's sodomy statute.

October 22, 2013 in Criminal Procedure, Due Process (Substantive), Opinion Analysis, Sexual Orientation, Sexuality, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, October 17, 2013

Government to Disclose Eavesdropping, Sets up Challenge to FISA

The Department of Justice will tell a criminal defendant in coming weeks that evidence used against him derived from eavesdropping, The New York Times reports.  The disclosure--the first in a criminal case--will give the defendant standing to challenge the government's authority under the Foreign Intelligence Surveillance Act to conduct surveillance against non-U.S. persons outside the United States, even when they're communicating with people within the United States.

Recall that the Court ruled earlier this year in Clapper v. Amnesty International that human rights and media organizations and attorneys lacked standing to challenge Section 702 of the FISA, which authorizes the surveillance, because they couldn't show that they had been, or would be, targets of surveillance.  Solicitor General Donald Verrilli represented to the Court in the case that prosecutors tell defendants when they're using evidence derived from FISA surveillance.  In particular, he wrote in the government's opening brief in the case,

If the government intends to use or disclose any information obtained or derived from its acquisition of a person's communications under [FISA Section 702] in judicial or administrative proceedings against that person, it must provide advance notice of its intent to the tribunal and the person, whether or not the person was targeted for surveillance . . . .  That person may then challenge the use of that information in district court by challenging the lawfulness of the . . . acquisition.

Government's Opening Brief at 8 (emphasis added).

But this turns out to be false, according to the NYT.  The Times reports that SG Verrilli discovered that prosecutors weren't telling defendants, after all.  

The discovery came in the fallout of a speech by Senator Dianne Feinstein.  That speech, touting FISA, suggested that the government used FISA-derived communications successfully in several cases.  But when defendants in two of those cases pressed prosecutors, the prosecutors said that they didn't have to say whether they used FISA-derived communications.  

This prompted SG Verrilli to ask national security lawyers why nobody told him before he filed his brief (and made similar comments at oral argument).  Government lawyers then argued over whether they had to disclose, with SG Verrilli taking the position that do.  Verrilli's position apparently prevailed, and the government will disclose to a defendant in coming weeks.

The move will give standing to the defendant to challenge Section 702, notwithstanding Clapper.  That's because the defendant will be able to show, with certainty, that he was subject to FISA surveillance--something the Court said that the Clapper challengers couldn't do.  

But it's not clear whether prosecutors will disclose to already-convicted defendants who were convicted on FISA-derived communications, and, if so, what will happen in those cases.  It's not even clear how many of those defendants there are.

October 17, 2013 in Cases and Case Materials, Criminal Procedure, Fundamental Rights, News, Standing | Permalink | Comments (0) | TrackBack (0)

Monday, September 30, 2013

Daily Read: Constitutional Rights and the Domestic War on Terror

Jeanne Theoharis (pictured right) Faculty_picturea Political Science Professor at Brooklyn College (CUNY) has an interesting article over at The Nation, as the first in a series of pieces in collaboration with Educators for Civil Liberties about the "domestic war on terror."  Theoharis discusses the well-known situation of Syed Fahad Hashmi, one of her former students.

She observes that "researchers and human rights advocates, focused on the horrors abroad in the “war on terror” (Guantánamo, Abu Ghraib, extraordinary rendition), had largely overlooked the civil rights abuses happening right here at home."

She argues

Just because something is legal does not make it just. Many of the most egregious rights violations in American history—slavery, the seizure of Indian land, segregation and the expansion of the penal system, the internment of Japanese-Americans, the firing of gay and communist-sympathizing federal employees during the McCarthy era—were accomplished and legitimated through the law. Most of these historical instances were undertaken as necessary security measures. It took public dissent and a sustained outcry, long and arduous struggles, to reveal the rights abuses embodied in the law.

This would be a great short "think piece" to stimulate conversation in a Constitutional Law class.

 

September 30, 2013 in Courts and Judging, Criminal Procedure, Current Affairs, Due Process (Substantive) | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 13, 2013

Daily Read: Bennett Capers on Stop and Frisk

Law prof I. Bennett Capers (pictured right) has a terrific op-ed in The New York Times today about Floyd v. City of New York, the "stop and frisk" opinion we discussed yesterday.

Bennett_capersCapers starts off with a personal perspective, analyzes the problem and opinion in accessible terms, and then most interestingly concludes:

That still leaves the question, “What now?” Mayor Bloomberg is sure to appeal Judge Scheindlin’s decision, both in the court of appeals and the court of public opinion. But that’s not the only option.

He could actually welcome Judge Scheindlin’s decision to appoint an independent monitor to supervise reform. Mr. Bloomberg already claims crime reduction as part of his legacy. It’s not too late for him to claim that and more: that he reduced crime and finally did so in a way that was fair, egalitarian and not racially discriminatory. And it’s certainly not too late for his successor.

New Yorkers will know that the identity of Mayor Bloomberg's sucessor will be determined at the conclusion of this contentious election period, in which (in)equality is shaping up to be a central issue.  But Capers' piece is definitely worth a read no matter where one lives.

RR

August 13, 2013 in Criminal Procedure, Current Affairs, Equal Protection, Fourteenth Amendment, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Monday, August 12, 2013

Federal District Judge Shira Scheindlin Finds NYCPD's Stop and Frisk Policies Violate Equal Protection

In a 198 page opinion today, accompanied by a 39 page order and opinion as to remedies, United States District Judge Shira Scheindlin has found the New York City Police Department's stop and frisk policies unconstitutional.  (Recall Judge Scheindlin enjoined the NYPD's stop and frisk practices in the Bronx earlier this year).

459px-NYPDNYCUnitedStatesofAmericaIn the closely watched case of Floyd v. City of New York, Judge Scheidlin's opinion is an exhaustively thorough discussion of the trial and at times reads more like a persuasive article than an opinion: it  begins with epigraphs, has a table of contents, and has 783 footnotes.  It also - - - helpfully - - - has an "Executive Summary" of about 10 pages.  Here is an excerpt:

Plaintiffs assert that the City, and its agent the NYPD, violated both the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. In order to hold a municipality liable for the violation of a constitutional right, plaintiffs “must prove that ‘action pursuant to official municipal policy’ caused the alleged constitutional injury.” “Official municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” 

The Fourth Amendment protects all individuals against unreasonable searches or seizures. . . . 

The Equal Protection Clause of the Fourteenth Amendment guarantees to every person the equal protection of the laws. It prohibits intentional discrimination based on race. Intentional discrimination can be proved in several ways, two of which are relevant here. A plaintiff can show: (1) that a facially neutral law or policy has been applied in an intentionally discriminatory manner; or (2) that a law or policy expressly classifies persons on the basis of race, and that the classification does not survive strict scrutiny. Because there is rarely direct proof of discriminatory intent, circumstantial evidence of such intent is permitted. “The impact of the official action — whether it bears more heavily on one race than another — may provide an important starting point.” 

The following facts, discussed in greater detail below, are uncontested: 

  • Between January 2004 and June 2012, the NYPD conducted over 4.4 million Terry stops.

  • The number of stops per year rose sharply from 314,000 in 2004 to a high of 686,000 in 2011.

  • 52% of all stops were followed by a protective frisk for weapons. A weapon was found after 1.5% of these frisks. In other words, in 98.5% of the 2.3 million frisks, no weapon was found.

  • 8% of all stops led to a search into the stopped person’s clothing, ostensibly based on the officer feeling an object during the frisk that he suspected to be a weapon, or immediately perceived to be contraband other than a weapon. In 9% of these searches, the felt object was in fact a weapon. 91% of the time, it was not. In 14% of these searches, the felt object was in fact contraband. 86% of the time it was not.

  • 6% of all stops resulted in an arrest, and 6% resulted in a summons. The remaining 88% of the 4.4 million stops resulted in no further law enforcement action.

  • In 52% of the 4.4 million stops, the person stopped was black, in 31% the person was Hispanic, and in 10% the person was white.

  • In 2010, New York City’s resident population was roughly 23% black, 29% Hispanic, and 33% white.

  • In 23% of the stops of blacks, and 24% of the stops of Hispanics, the officer recorded using force. The number for whites was 17%.

Near the end of the opinion, Judge Scheindlin astutely expresses the problem that has complicated relations between Fourth Amendment and Equal Protection arguments, as we recently discussed about racial profiling in Arizona.  She solves the problem firmly on the side of Equal Protection:

The City and the NYPD’s highest officials also continue to endorse the unsupportable position that racial profiling cannot exist provided that a stop is based on reasonable suspicion.  This position is fundamentally inconsistent with the law of equal protection and represents a particularly disconcerting manifestation of indifference. As I have emphasized throughout this section, the Constitution “prohibits selective enforcement of the law based on considerations such as race.”  Thus, plaintiffs’ racial discrimination claim does not depend on proof that stops of blacks and Hispanics are suspicionless. A police department that has a practice of targeting blacks and Hispanics for pedestrian stops cannot defend itself by showing that all the stopped pedestrians were displaying suspicious behavior. Indeed, the targeting of certain races within the universe of suspicious individuals is especially insidious, because it will increase the likelihood of further enforcement actions against members of those races as compared to other races, which will then increase their representation in crime statistics. Given the NYPD’s policy of basing stops on crime data, these races may then be subjected to even more stops and enforcement, resulting in a self-perpetuating cycle.

The Equal Protection Clause’s prohibition on selective enforcement means that suspicious blacks and Hispanics may not be treated differently by the police than equally suspicious whites. Individuals of all races engage in suspicious behavior and break the law. Equal protection guarantees that similarly situated individuals of these races will be held to account equally.

 This important, scholarly, and thorough opinion is sure to set a standard of judicial craft.  It is also sure to be appealed by the City of New York.

RR

August 12, 2013 in Cases and Case Materials, Criminal Procedure, Current Affairs, Equal Protection, Fourteenth Amendment, Fourth Amendment, Opinion Analysis, Race | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 30, 2013

The Police Officer, the Quota Complaint, and the First Amendment

800px-NYPD_cars_line_up

NYPD Officer Craig Matthews was critical of the alleged quota system responsible for unjustified stops, arrests, and summonses in his precinct in New York City and suffered adverse employment actions.    His claim of a First Amendment violation raises the specter of Garcetti v. Ceballos, decided by the Court in 2006.  Citing Garcetti, as well as Second Circuit precedent, a district judge dismissed Matthews' complaint last year. The Second Circuit reversed in a summary order, finding that discovery was required to inquire into the "nature of the plaintiff’s job responsibilities, the nature of the speech, and the relationship between the two.”  On remand, the case was reassigned to a different judge, discovery ensued,  but Matthews was again unsuccessful.  

Judge Englemayer 's opinion in Matthews v. City of New York grants summary judgment to the defendant.

While the subject matter of Officer Matthews' speech was clearly a matter of public concern, the officer spoke "pursuant to his public duties" and as an employee rather than a citizen.  Judge Englemayer's opinion contains an excellent rehearsal of the Supreme Court's precedent, starting with Pickering and continuing to Garcetti.  But the crux of the argument rests upon the Second Circuit case of Jackler v. Byrne,  a rare post-Garcetti case finding for the employee.  The judge distinguishes Jackler on specific facts: 

Officer Matthews made a series of truthful reports about his concerns; unlike Jackler, he was neither compelled to retract those statements nor to file a false report.

Judge Englemayer goes on for an additional ten pages, engaging in a "fact-specific inquiry" regarding  whether Matthews' complaints were made "pursuant to his official duties."  It is definitely a careful and considered opinion, yet it is sure to be appealed.  With the continuining attention to stop and frisk policies, including the possibility of police "quotas," Matthews' case raises important issues not necessarily solved by current First Amendment doctrine.

RR

July 30, 2013 in Criminal Procedure, Current Affairs, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, July 22, 2013

Divided Fourth Circuit Rejects Reporters' Privilege to Protect Sources

In its opinion in United States v. Sterling, with James Risen as Intervernor, a sharply divided Fourth Circuit panel declared there was no First Amendment right - - - or common law privilege - - - for a reporter to resist a subpoena to reveal the identity of a source.

State_of_War_James_RisenThe underlying controversy involves James Risen's book, State of War: The Secret History of the CIA and the Bush Administration  and the prosecution of former CIA agent Jeffrey Sterling for various crimes related to his revealtions of classified information.   As Chief Fourth Circuit Judge William Traxler, writing for the panel majority on this issue, describes it,

Chapter 9 of the book, entitled “A Rogue Operation,” reveals details about Classified Program No. 1. J.S.A. 219-32. In the book, Risen entitled the program “Operation Merlin” and described it as a “failed attempt by the CIA to have a former Russian scientist provide flawed nuclear weapon blueprints to Iran.” J.A. 722. Risen does not reveal his sources for the classified information in Chapter 9, nor has he indicated whether he had more than one source. However, much of the chapter is told from the point of view of a CIA case officer responsible for handling Human Asset No. 1. The chapter also describes two classified meetings at which Sterling was the only common attendee.

While the opinion involves two other issues, involving the suppression of the testimony of two other government witnesses and the withholding of the identities of several covert CIA operatives under the Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. 3 - - - issues on which Chief Judge Traxler wrote a concurring and dissenting opinion - - - the nonexistence of a reporters' privilege is the most central from a constitutional perspective.   The majority opinion was unequivocal:

There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.

The majority reasoned that this result was mandated by the United States Supreme Court's 1972 opinion in Branzburg v. Hayes.  It did not credit the argument that Justice Powell’s concurring opinion in Branzburg made Branzburg's holding less clear.  Instead, it rejected Risen's contention that Powell's concurrence "should instead be interpreted as a tacit endorsement of Justice Stewart’s dissenting opinion, which argued in favor of recognizing a First Amendment privilege in criminal cases that could be overcome only if the government carries the heavy burden of establishing a compelling interest or need."  The majority stated that just as in Branzburg, Risen has

“direct information . . . concerning the commission of serious crimes.” Branzburg, 408 U.S. at 709. Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury –- the illegal disclosure of classified, national security information by one who was entrusted by our government  to protect national security, but who is charged with having endangered it instead.

That the crime is the leak itself does not seem to be noteworthy.  The majority likewise rejected the notion that there was any common law privilege.

For Judge Robert Gregory, dissenting, principles of a free press as expressed in the First Amendment should include a reporter's privilege, that should then be evaluated under a balancing test:

Protecting the reporter’s privilege ensures the informed public discussion of important moral, legal, and strategic issues. Public debate helps our government act in accordance with our Constitution and our values. Given the unprecedented volume of information available in the digital age – including information considered classified – it is important for journalists to have the ability to elicit and convey to the public an informed narrative filled with detail and context. Such reporting is critical to the way our citizens obtain information about what is being done in their name by the government.

For Judge Gregory, Justice Powell's concurring opinion modifies the holding of Branzburg.  Recognizing that the "full import of Justice Powell’s concurrence continues to be debated," Judge Gregory notes that appellate courts have subsequently hewed closer to Justice Powell’s concurrence – and Justice Stewart’s dissent – than to the majority opinion, and a number of courts have since recognized a qualified reporter’s privilege, often utilizing a three-part balancing test."  He thus finds it "sad" that the majority "departs from Justice Powell’s Branzburg concurrence and our established precedent to announce for the first time that the First Amendment provides no protection for reporters."  Judge Gregory would also recognize a "common law privilege protecting a reporter’s sources pursuant to Federal Rule of Evidence 501."

While there are statutory proposals and provisions aplenty, the continuing confusion over the meaning of Branzburg and the existence of a reporter's First Amendment or even common right to retain confidentiality of sources does call for resolution.  The Fourt Circuit's divided opinion squarely presents the issue for the Supreme Court .

RR

July 22, 2013 in Books, Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Opinion Analysis, Speech, State Secrets | Permalink | Comments (0) | TrackBack (0)

Sunday, June 23, 2013

Muslim Surveillance in NYC: Federal Complaint Challenges Constitutionality of Practices

4-nypd-casepage-mgb-150x150-v01The complaint in Raza v. City of New York details over 150 paragraphs of facts and alleges that NYPD practices have infringed upon the plantiffs' equal protection and First Amendment religion clauses rights, as well as state constitutional rights.  The plaintiffs are United States citizens as well as Muslim community leaders, as well as two mosques and one chartitable organization.  They allege that they have been "religiously profiled" and subject to surveillance, including infiltration of their organizations.

The complaint is worth reading for its specific facts of an extensive practice of surveillance of the named plaintiffs. Interestingly, the complaint does not include a Fourth Amendment claim but does include a First Amendment Establishment Clause claim, contending that the NYPD practice "fosters an excessive government entanglement with religion by, among other things, subjecting Plaintiffs to intrusive surveillance, heightened police scrutiny, and infiltration by police informants and officers."   More predictable are the equal protection and free exercise of religion claims.  

With the increasing public discussion of generalized surveillance, this challenge to a specific tageted practice within a city is worth watching.  Of course, it is not the first time that the NYPD has been challenged for its practices of surveillance.

RR
[image: logo of the plaintiff organization via]

 

June 23, 2013 in Cases and Case Materials, Criminal Procedure, Current Affairs, Equal Protection, Establishment Clause, First Amendment, Fourteenth Amendment, Fourth Amendment, Free Exercise Clause | Permalink | Comments (0) | TrackBack (0)

Monday, April 22, 2013

Daily Read: The Terrorism Exception to the Constitution?

Should there really be a "terrorism" exception to the criminal procedure protections in the Bill of Rights?

ConLawProfs looking for an extended treatment of this question might do well to turn to Norman Abrams' article, Terrorism Prosecutions in U.S. Federal Court: Exceptions to Constitutional Evidence Rules and the Development of a Cabined Exception for Coerced Confessions, available at 4 Harv. Nat’l Sec. J. 58 (2012).

Abrams argues for a something less than a wholesale exception:

The expression, “cabined,”  is  meant to signify not extending  all the way up the ladder of police  interrogation  methods, but only applying to a limited, non  -  extreme set of interrogation  methods, albeit methods that under current law might lead to a  determination of involuntariness.  A cabined exception is one that would, under the appropriate circumstances, authorize the FBI, or other police agencies, to use interrogation methods that exceed existing constitutional limits as  established by the Supreme Court, but only up to a point, and not to the  point where the methods used are extreme.

For some, allowing law enforcement the discretion to determine the "appropriate circumstances" and the methods that are not "extreme" is exceedingly troubling.  But Abrams extended argument seeking to support his conclusion is worth a read, even as the immediate issue of the possibility of a "terrorism exception" applied to Tsarnaev has receded.  

RR


April 22, 2013 in Criminal Procedure, Due Process (Substantive), Scholarship, State Secrets, Theory | Permalink | Comments (0) | TrackBack (0)

Monday, April 8, 2013

Daily Read: Linda Greenhouse on Federalism and Same-Sex Marriage

In her column in the NYT last week, Linda Greenhouse wonders whether the federalism argument in the challenge to DOMA in United States v. Windsor is a "Trojan horse." 

Greenhouse has this reminder about federalism and family law:

There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)

Nor is this ancient history. In 2000, the court struck down a state law in Washington that gave grandparents the right to visit their grandchildren over the parents’ objection. Justice O’Connor wrote the court’s opinion, Troxel v. Granville, which was joined by Chief Justice Rehnquist.

800px-Troi
Moreover, she extends the argument outside marriage and family law:

Substitute “marriage” for “criminal procedure” and you time-travel into last week’s argument. But you will listen in vain for the voice of Justice William O. Douglas, who brushed away concerns about what he dismissively called “this federalism” to ask: “Has any member of this court come out and said in so many terms it’s the constitutional right of a state to provide a system whereby people get unfair trials?”

As usual, Linda Greenhouse is worth a read, for ConLaw Profs and ConLaw students.

RR
[image via]

April 8, 2013 in Criminal Procedure, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, Fifth Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Interpretation, Oral Argument Analysis, Sexual Orientation, Sexuality, Sixth Amendment, Supreme Court (US), Theory | Permalink | Comments (2) | TrackBack (0)

Thursday, March 14, 2013

Ninth Circuit Reverses Death Sentence Because of Unconstitutional Actions of Police Officer and Prosecution

The Ninth Circuit has granted a writ of habeas corpus to Debra Jean Milke, a woman on Arizona's death row for the 1990 death of her four year old child, in its opinion today in Milke v. Ryan.

Debra Milke

The opinion is noteworthy not only for the grant of the writ in a death penalty case, but for its portrayal of police and prosecutorial practices and for the work it took to uncover the problems.  At the heart of the case is what the panel describes as essentially a "swearing contest" between the then 25 year old Debra Jean Milke (pictured right) and Phoenix Police Detective Armando Saldate, Jr.  The Detective testified that Milke was given MIranda warnings and confessed to the murder of her son.  Ms. Milke contended that she requested a lawyer, never confessed, and was innocent.  There was no signed Miranda waiver, no tape of the interrogation or confession, and no evidence other than the Detective's oral statements linking Ms. Milke to the crime.  Milke has maintained her innocence. At trial, Milke's attorneys requested the personnel files of Detective Saldate, but the state judge quashed the subpoena.  The prosecution never disclosed the evidence despite Brady v. Maryland, 373 U. S. 83 (1963) which requires the prosecution to disclose evidence favorable to the accused and material to his guilt or punishment.

Detective Saldate's file would have included not only numerous disciplinary actions against him for untruthfulness, but also the major cases he had worked on, including those that had appellate opinions reversing convictions based upon Saldate's violations of constitutional rights or dishonesty.  The appendix to the panel opinion lays out eight cases and one internal affairs investigation with specific findings regarding Saldate's "lying under oath" or Fourth or Fifth Amendment violations.

Also of note is the manner in which Saldate's transgressions were ultimately discovered:

Milke was able to discover the court documents detailing Saldate’s misconduct only after a team of approximately ten researchers in post-conviction proceedings spent nearly 7000 hours sifting through court records. Milke’s post-conviction attorney sent this team to the clerk of court’s offices to search for Saldate’s name in every criminal case file from 1982 to 1990. The team worked eight hours a day for three and a half months, turning up 100 cases involving Saldate. Another researcher then spent a month reading motions and transcripts from those cases to find examples of Saldate’s misconduct.

449px-St_Andreas_Parsberg_067Although Judge Kozinski wrote the panel opinion, he also wrote a concurring opinion that expressed his more personal views:

No civilized system of justice should have to depend on such flimsy evidence, quite possibly tainted by dishonesty or overzealousness, to decide whether to take someone’s life or liberty. The Phoenix Police Department and Saldate’s supervisors there should be ashamed of having given free rein to a lawless cop to misbehave again and again, undermining the integrity of the system of justice they were sworn to uphold. As should the Maricopa County Attorney’s Office, which continued to prosecute Saldate’s cases without bothering to disclose his pattern of misconduct.

Indeed, given Saldate’s long history of trampling the rights of suspects, one wonders how Saldate came to interrogate a suspect in a high-profile murder case by himself, without a tape recorder or a witness. And how could an interrogation be concluded, and a confession extracted, without a signed Miranda waiver? In a quarter century on the Ninth Circuit, I can’t remember another case where the confession and Miranda waiver were proven by nothing but the say-so of a single officer. Is this par for the Phoenix Police Department or was Saldate called in on his day off because his supervisors knew he could be counted on to bend the rules, even lie convincingly, if that’s what it took to nail down a conviction in a high-profile case?

It’s not just fairness to the defendant that calls for an objectively verifiable process for securing confessions and other evidence in criminal cases. We all have a stake in ensuring that our criminal justice system reliably separates the guilty from the innocent. Letting police get away with manufacturing confessions or planting evidence not only risks convicting the innocent but helps the guilty avoid detection and strike again.

From the rendition of the facts in both the panel and concurring opinions, Ms. Milke was the victim of a grave injustice.  But recall the Supreme Court's 5-4 opinion in Connick v. Thompson regarding the standard by which Brady violations should be evaluated:  the "state district attorney's office cannot be held liable for a failure to train the assistant district attorneys regarding compliance with Brady unless there was evidence that there was a need for "more or different Brady training.""

 RR

*updated correction

March 14, 2013 in Courts and Judging, Criminal Procedure, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Friday, March 1, 2013

Update on the Jacket in the United States Supreme Court Building

No, not John Paul Cohen's jacket about the draft, central to the 1971 case of Cohen v. California.

This jacket was worn a little over a year ago and prompted an arrest as we discussed then

USSCt
Inside of US Supreme Court Building

 

Recall that the Supreme Court Building has special status, arguably as a First Amendment free-zone.  And although the charges were dropped against last year's  jacket wearer - - - Fitzgerald Scott - - - he brought suit in the United States District Court for the District of Columbia.

In its memorandum supporting its motion to dismiss,the United States Attorney's office includes this intriguing point heading: "The Fact that Plaintiff’s Jacket Conveyed a Message Only Reinforces the Conclusion that There Was Probable Cause for the Arrest."   Essentially, the government argues that the "message" does not support a First Amendment claim of political speech targeted because of its content, but instead is a "concession" under 40 U.S.C. § 6135, prohibiting the display of items designed to bring notice to an organization or movement within the United States Supreme Court building.  Recall that the Supreme Court has upheld the constitutionality of §6135.

While it seems that Scott has an uphill battle under the current precedent, his battle is certainly a reminder of Justice Thurgood's Marshall observation that the Supreme Court occupies an ironic position with regard to the First Amendment.

RR
[image via]

March 1, 2013 in Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Fourth Amendment, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, February 25, 2013

Sotomayor Focuses on Prosecutor's "Racially Charged" Remark

Writing in a "Statement" accompanying the denial of certiorari in Calhoun v. United States today, Justice Sotomayor (joined by Justice Breyer) sought to "dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutor’s racially charged remark." 

480px-Sonia_Sotomayor_in_SCOTUS_robeDefendant Calhoun's intent to participate in a drug conspiracy was a central issue and the defendant took the stand.  As Sotomayor explains:

The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room. Eventually, the District Judge told the prose- cutor to move on. That is when the prosecutor asked, “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?”

For Sotomayor, such prosecutorial argument threatens to violate the equal protection guarentee as well as the defendant's right to an impartial jury. She also castigated the government's original position on appeal that the prosecutor's argument was merely "impolitic," and agreed with a Fifth Circuit Judge who noted that the prosecutor's argument clearly "crossed the line."

But the unusual posture of the case - - - including issues preserved for appeal - - - meant that Sotomayor's Statement was a statement, and not a dissent from the denial of certiorari.  But a strong statement it certainly was:

I hope never to see a case like this again.

RR

February 25, 2013 in Criminal Procedure, Equal Protection, Fifth Amendment, Race, Recent Cases, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Wednesday, January 9, 2013

Stop and Frisk in the Bronx Enjoined by Federal Judge

In her 200 plus page opinion in Ligon v. City of New York, federal district judge Shira A. Scheindlin enjoined "stop and frisk" practices of the NYPD in the Bronx.  The stop and frisk practices by law enforcement have been increasingly controversial, including arrests of persons attempting to document the practice.

Tp-task-force-at-silent-march-6-17-12The problem in Lignon is a relatively simple one.  The standard for stop and frisk is reasonable suspicion, established by Terry v. Ohio (1968).   In the Bronx, there was a practice of Terry stops on the basis of reasonable suspicion of trespass outside buildings in the Bronx that are enrolled in the Trespass Affidavit Program (“TAP”), which was formerly known in the Bronx as Operation Clean Halls.  Seemingly, the building, rather than any activity by people, gave rise to the "suspicion" and many people were subject to a Terry stop and frisk outside their own residences. 

The judge concluded

while it may be difficult to say where, precisely, to draw the line between constitutional and unconstitutional police encounters, such a line exists, and the NYPD has systematically crossed it when making trespass stops outside TAP buildings in the Bronx. For those of us who do not fear being stopped as we approach or leave our own homes or those of our friends and families, it is difficult to believe that residents of one of our boroughs live under such a threat. In light of the evidence presented at the hearing, however, I am compelled to conclude that this is the case.

The judge made it clear that she was

not ordering the abolition or even a reduction of TAP, which appears to be a valuable way of using the NYPD’s resources to enhance the security in voluntarily enrolled private buildings. My ruling today is directed squarely at a category of stops lacking reasonable suspicion.

Precisely because these stops lack rational justification, they are presumably of less value to public safety than would be the stops of individuals who displayed objectively suspicious behavior.

But she did rule that the "NYPD is ordered immediately to cease performing trespass stops outside TAP buildings in the Bronx without reasonable suspicion of trespass."   Judge Scheindlin also ordered consolidation of the hearing on some other remedies with the remedies hearing in Floyd v. City of New York, a stop and frisk challenge involving the entire city and not only the borough of the Bronx.

RR
[image from protest against stop and frisk via]

 

January 9, 2013 in Criminal Procedure, Fourth Amendment, Opinion Analysis, Race | Permalink | Comments (0) | TrackBack (0)

Thursday, January 3, 2013

Second Circuit on Middle Finger

Although the Second Circuit panel opinion in Swartz v. Insogna does not refer to the First Amendment, the court implicitly relies on free expression principles to reverse the district judge and allow the plaintiffs' civil rights action against two law enforcement officers to proceed.

Majeur5As Judge Jon Newman, writing the unanimous opinion, explained, the case began as the result of an "irate automobile passenger's act of 'giving the finger,' a gesture of insult known for centuries, to a policeman," prompted by the officer's use of a radar device. Although the plaintiffs' car was not speeding, the officer followed the car and initiated a "traffic stop."  Mr. Swartz was subsequently arrested for disorderly conduct (seemingly because of a statement describing himself in unflattering terms) and made three court appearances before the charges were ultimately dismissed on speedy trial grounds. 

At issue was whether the original stop was reasonable under the Fourth Amendment.  But underlying this determination depended on the meaning of the "middle finger" expression.  As Judge Newman wrote:

Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation.  And perhaps that interpretation is what prompted [Officer] Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness.  This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer. And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.

Judge Newman cites LawProf Ira Robbin's wonderful 2008 article, Digitus Impudicus: The Middle Finger and the Law, published in the UC Davis Law Review and available on ssrn.  While the citation is to Robbins' discussion of the first recorded use of the gesture in the United States in 1886 (hint: think baseball), Judge Newman's opinion does seem influenced by Robbins' article, which extensively discusses the First Amendment aspects of the gesture and their relationship to criminal justice.  

RR
[image via]

 

January 3, 2013 in Criminal Procedure, First Amendment, Opinion Analysis, Profiles in Con Law Teaching, Scholarship, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, December 20, 2012

Canada Supreme Court on the Constitutionality of a Veiled Witness in Criminal Prosecution

The Supreme Court of Canada this morning has issued its long-awaited opinion in R. v. N.S., 2012 SCC 72,  essentially affirming the provincial Court of Appeal of Ontario 2010 conclusion regarding the wearing of a niqab (veil) by a witness in a criminal proceeding and dismissing the appeal and remanding the matter to the trial judge.

NiqabAt issue is a conflict of rights that should be familiar to US conlaw scholars: the rights of a witness in a trial, here her religious rights, in opposition to the rights of the accused to a fair trial, including the right to confrontation of witnesses.  The accusing witness, N.S., is a Muslim woman who wished to testify at a preliminary hearing in a criminal case in which the defendants, N.S.'s uncle and cousin, were charged with sexual assault.  The defendants sought to have N.S. remove her niqab when testifying.  The judge heard testimony from N.S., in which she admitted that she had removed her niqab for a driver's license photo by a woman photographer and she would remove her niqab if required at a security check.  The judge then ordered  N.S. to remove her niqab when testifying, concluding that her religious belief was "not that strong."   This determination of the "strength" of N.S.'s belief was one of the reasons for the remand as it troubled the Supreme Court.

Cj4096_Balfour-250The majority opinion, authored by Chief Justice Beverley McLachlin (pictured) and joined by three of the Court's seven Justices, began by noting the conflict of Charter rights at issue: the witness’s freedom of religion and the accused's fair trial rights, including the right to make full answer and defence.  The opinion quickly rejected any "extreme approach" that would value one right over the over, as "untenable."  Instead, the Court articulated the Canadian constitutional law standard of "just and proportionate balance" as:

A witness who for sincere religious reasons wishes to wear the niqab while testifying in a criminal proceeding will be required to remove it if (a) this is necessary to prevent a serious risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of requiring her to remove the niqab outweigh the deleterious effects of doing so.

In turn, this involved four separate inquiries:

First, would requiring the witness to remove the niqab while testifying interfere with her religious freedom as construed by section 2(a) of the Charter, which centers on a sincere (rather than "strong") religious belief?

Second, would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness?  The opinion recognized the deeply rooted presumption that seeing a face is important, but noted that in litigation in which credibility or identification are not involved, failure to view the witness' face may not impinge on trial fairness.

Third, assuming both rights are engaged, the trial judge must ask "is there a way to accommodate both rights and avoid the conflict between them?"

Finally, if accommodation is impossible, the judge should engage in a balancing test, asking whether

the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?  Deleterious effects include the harm done by limiting the witness’s sincerely held religious practice.  The judge should consider the importance of the religious practice to the witness, the degree of state interference with that practice, and the actual situation in the courtroom – such as the people present and any measures to limit facial exposure.  The judge should also consider broader societal harms, such as discouraging niqab-wearing women from reporting offences and participating in the justice system.  These deleterious effects must be weighed against the salutary effects of requiring the witness to remove the niqab.  Salutary effects include preventing harm to the fair trial interest of the accused and safeguarding the repute of the administration of justice.  When assessing potential harm to the accused’s fair trial interest, the judge should consider whether the witness’s evidence is peripheral or central to the case, the extent to which effective cross-examination and credibility assessment of the witness are central to the case, and the nature of the proceedings.  Where the liberty of the accused is at stake, the witness’s evidence central and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance.  The judge must assess all these factors and determine whether the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so.

 In sending the case back to the trial judge (and instructing judges in similar situations in the future), the Court provides guidance, yet obviously falls far short of definitive answers. 

The concurring opinion of two Justices argued that a "clear rule" should be chosen.  This rule should be the removal of the niqab because a trial is a "dynamic chain of events" in which a conclusion about which evidence is essential can change. 

Abella250Justice Rosalie Abella (pictured right) wrote the solitary dissenting opinion.  On her view, while rooted in religious freedom, wearing a veil could certainly be analogized to other types of "impediments" in which the face or other aspects of demeanor might be obscured such as when a person is blind, deaf, not an English speaker, a child, or a stroke victim.  Moreover, Abella argued:

Wearing a niqab presents only a partial obstacle to the assessment of demeanour.  A witness wearing a niqab may still express herself through her eyes, body language, and gestures.  Moreover, the niqab has no effect on the witness’ verbal testimony, including the tone and inflection of her voice, the cadence of her speech, or, most significantly, the substance of the answers she gives.  Unlike out-of-court statements, defence counsel still has the opportunity to rigorously cross-examine N.S. on the witness stand. 

Abella also stressed the specifics of the case involved: a sexual assault prosecution by a young woman in which the defendants were members of her own family.

From the perspective of US conlaw scholars, whether or not interested in comparative constitutional law, the Canada Supreme Court's opinion in R. v. N.S. is an important one seeking to balance rights and addressing an issue that is percolating in the United States courts.

RR
[image of niqab via; image of Justices via Canada Supreme Court website]

December 20, 2012 in Comparative Constitutionalism, Criminal Procedure, Free Exercise Clause, Gender, Opinion Analysis, Religion, Sixth Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 18, 2012

Complaint Against NYPD Alleging Right to Record Police Officers

The First Amendment right to record public police interactions with "smartphones" is the basis of a complaint filed yesterday in Charles v. City of New York.  The facts as alleged by plaintiff Hadiyah Charles are not dissimilar to those in Glik v. Cunniffe in which the First Circuit in 2011 found a First and Fourth Amendment violation and denied qualified immunity to the officers involved. (Compare the Seventh Circuit decision earlier this year).

NYCLUappThe recitation of facts in Charles' complaint link her actions to the controversial "stop and frisk" policy of the NYPD that she sought to record.  Her allegations also include failure to train law enforcement officers to abide by the department's Patrol Guide as well as the First Amendment.  Ms. Charles was arrested, held for some time, her phone searched, released with a charge of disorderly conduct that was ultimately dismissed.  The complaint also contains allegations that police officers derided Ms. Charles for being a "street lawyer." Ms. Charles is not an attorney, but an HIV activist who has been recognized as a "Champion of Change" by the White House.

A report in Gothamist has more details. 

And for those who plan on replicating Ms. Charles' activities, NYCLU has an "app" for that: “Stop and Frisk Watch” includes the ability to record, provide information, and transmit it to the NYCLU. 

RR
[image: screenshot from NYCLU video via].

December 18, 2012 in Criminal Procedure, First Amendment, Fourth Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, December 6, 2012

Daily Read: Bradley Manning's Attorney on C-Span

Some excellent reporting and gathering of materials from C-SPAN on the Bradley Manning case, involving constitutional issues of state secrets, First Amendment, and due process, among others.

Today's daily "read" is the video from an event discussing the Manning case features a very rare appearance by Manning's attorney, David Coombs.   The introduction of Coombs starts at 22:40.  Coombs discusses the "unlawful pretrial punishment motion" regarding Manning's treatment during detention which he describes as "criminal" before the move to Leavenworth, the public attention to the case, whistle-blowing.  He also responds to vetted questions: he lauds the military justice system, including the judges and any possible panel, as educated, open-minded, and fair; discusses his own legal career; generally discusses the relationship between the "press" and an "aiding the enemy" offense; the perils of "trying the case in the press;" and privileged communication between attorney and client.   Interestingly absent is any discussion of Manning's sexuality.

.

 

This is definitey worth a listen!

RR

December 6, 2012 in Courts and Judging, Criminal Procedure, Current Affairs, Due Process (Substantive), Foreign Affairs, News, Sexuality, State Secrets | Permalink | Comments (0) | TrackBack (0)

Monday, December 3, 2012

District Court Upholds Federal Ban on Body Armor

Judge Thomas Johnston (WDWV) ruled in U.S. v. Mark that the federal ban on body armor possession by a convicted felon did not violate the Second Amendment or Due Process Clause, and that Congress did not exceed its authority in enacting the ban under the Commerce Clause.

Mark brought his challenge after he was charged and convicted of possession of body armor by a felon under 18 U.S.C. Secs. 931 and 921(a)(35).  Federal marshalls found the body armor, along with a cache of weapons, in a protective sweep of his home after his arrest. 

Judge Johnston ruled that the statutes did not violate the Second Amendment, because there was no indication that the Framers intended to protect body armor in the Second Amendment, and there was no case law on body armor providing any additional guidance.  He wrote that the statutes were not unconstitutionally vague under due process in defining "body armor," because Section 931 gives a definition "that is readily understandable to the ordinary person."  Op. at 19.  And he held that the jurisdictional element in Section 931 was indistinguishable from the jurisdictional element in 18 U.S.C. Sec. 922(g)(1), the statute penalizing possession of firearms by convicted felons and upheld by the Fourth Circuit--on the basis of its jurisdictional element.

Judge Johnston also ruled the marshalls' search, a protective sweep of the home after arrest, didn't violate the Fourth Amendment.

SDS

December 3, 2012 in Cases and Case Materials, Congressional Authority, Criminal Procedure, Due Process (Substantive), Fourth Amendment, News, Opinion Analysis, Second Amendment | Permalink | Comments (0) | TrackBack (0)