Thursday, June 26, 2014
The briefs in this week’s landmark Riley v. California cellphone search decision showcase the choices lawyers must make when framing the issues. They also demonstrate how injecting some factual context into an issue statement can dramatically increase its persuasive value.
In the Riley cert petition, defendant’s counsel chose a classic “whether” statement:
"Whether or under what circumstances the Fourth Amendment permits police officers to conduct a warrantless search of the digital contents of an individual’s cell phone seized from the person at the time of arrest."
It’s a good, clear issue statement that partially meets audience needs by identifying what legal question the Court will resolve if it accepts the case. It’s also the type of issue statement most of us were taught to write in law school (if we were taught), and it is particularly appropriate for issues involving pure questions of law. Like most legal questions, however, the cellphone cases involve mixed questions of law and fact—even just the details about how smartphones work are important facts that played heavily into the reasoning in Riley and Wurie. Looking at the facts in Riley’s cert petition, the events highlighted most prominently in the statement of facts were:
- "The phone was a Samsung Instinct M800 “smartphone” – a touch-screen device designed to compete with Apple’s iPhone, capable of accessing the internet, capturing photos and videos, and storing both voice and text messages, among other functions."
- "First, Officer Dunnigan scrolled through the phone’s contents at the scene. He noticed that some words (apparently in text messages and the phone’s contacts list) normally beginning with the letter 'K' were preceded by the letter 'C.' Officer Dunnigan believed that the 'CK' prefix referred to 'Crip Killers,' a slang term for members of a criminal gang known as the 'Bloods.'"
- "The second search of petitioner’s phone took place hours later at the police station. After conducting an interrogation in which petitioner was nonresponsive, Detective Duane Malinowski, a detective specializing in gang investigations, went through petitioner’s cell phone. The detective searched through “a lot of stuff” on the phone “looking for evidence.” Detective Malinowski found several photographs and videos that suggested petitioner was a member of a gang. Pet. App. 4a, 6a-7a. He also found a photo of petitioner with another person posing in front of a red Oldsmobile that the police suspected had been involved in a prior shooting."
(Emphasis added.) By adding a couple of sentences containing the highlighted information, the need for a warrant becomes plain. For those still skeptical about the power of adding facts to issue statements, I recommend looking at the question presented in the government’s response brief:
"After petitioner’s lawful arrest for possession of loaded firearms, officers twice examined the contents of his cell phone, on his person at the time of his arrest, for evidence linking him to the firearms. The first examination, a cursory one of text entries, occurred at the scene of the arrest; the second, which included viewing photographs and videos, occurred a couple of hours later at the police station. The question presented is: Whether the officers’ searches of the cell phone seized incident to petitioner’s arrest were lawful under the Fourth Amendment."
Notice how the facts frame the issue here: “officers twice examined the contents of his cell phone . . . for evidence linking him to the firearms,” and the first search was “cursory.” It’s clear from Riley’s facts that the officers were searching much more generally—and thoroughly—for evidence of gang activity, not only for evidence related to “the [two] firearms” found in his car. But the Court has to read all the way down to the statement of facts to see that discrepancy.
In a less prominent case with a less pressing social issue, the government might have made a much stronger first impression on the Court, not only in the final decision, but also in whether to accept the case for review in the first place.
Thursday, June 12, 2014
Following the Adam Liptak piece on Professor Richard Lazarus' new study, that I mentioned in my last post, a clever coder has developed a way to monitor, identify, and publicize any changes to U.S. Supreme Cout opinions. David Zvenyach, general counsel to the Council of the District of Columbia, has launched @SCOTUS_servo, to help identify any changes. The Twitter feed reports the result of comparison of the prior verison of court opinions to those now appearing. The code that does this, a crawler, checks every five minutes for a change and makes an automated post to the Twitter account reporting any change that has been made. Zvenyach then makes a manual tweet detailing and highlighting the actual change.
This is a useful service for forcing transparency regardless of how important any individual change might be to the followers of@SCOTUS_servo. More details available at this Gigaom post by Jeff John Roberts.
Tuesday, June 10, 2014
Above The Law just posted Benchslap Of The Day: The D.C. Circuit Calls Out A Top Law School. In a time when lawyers are criticized for being unprofessional, I think it might be time to question whether the benchslap itself is unprofessional. Perhaps there are other more productive ways to ensure professionalism without resorting to the humiliating and demeaning benchslap.
Monday, June 2, 2014
Adam Liptak has a terrific, if deeply disturbing, piece in the New York Times: Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing last week.
The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include “truly substantive changes in factual statements and legal reasoning,” said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.
The article identifies a handful of cases that received more than typographical or editing changes. While none of the changes located actually reverse the Court's decision, some certainly alter substantive comments of the Court and involve language already under discussion by the bench, bar, and legal academia. These identified changes are almost certainly only the tip of the iceberg. The NYT piece is worth reading, and hopefully Lazarus' study will make some waves.