Recently in Criminal Procedure Category

In Taylor v. Louisiana (1975), the Supreme Court constitutionalized what had been up to that point a policy decision made by some courts and legislatures, including Congress, that juries should be drawn from a cross-section of the community. Taken to its logical extreme, this would require racial quotas for jury venires, with the jury commissioner taking affirmative action to meet the quota of minority jurors if neutral selection policies did not naturally produce the supposedly needed numbers. But we don't take it to that extreme, do we?

This AP story from Georgia reports that a murder defendant wants his trial postponed until after the next census to get the benefit of altered county demographics. The story says (emphasis added),

Jury pools in Clayton County, like many other jurisdictions, are drawn from voter registration lists, driver's license data and utility records. The list is then balanced by gender and race using the Census.

Now, every citizen has a duty to serve if summoned, but one ought not be burdened with this duty more often than others by reason of one's race. That would be the effect if people who belong to groups with a higher percentage of ineligibles or no-shows are oversampled to make up the difference.  If the cross-section rule really required that, it would collide head-on with the Equal Protection Clause. In the event of such a collision, equal protection should win. For one thing, it really is in the Constitution, unlike Taylor's complete fabrication.

The U.S. Supreme Court today decided a case under the federal Speedy Trial Act, Bloate v. United States, No. 08-728. This is a statutory interpretation case applicable only to federal prosecutions. The Sixth Amendment's Speedy Trial Clause is not mentioned.

The lineup is unusual, with Justices Alito and Breyer in the dissent and the other seven in the majority. Justice Ginsburg wrote a separate concurrence to emphasize that the defendant does not necessarily get the windfall of dismissal for delays that are mostly of his own doing. More needs to be decided on remand.

Most interesting to me is that the Court reads that statute in a straightforward manner and is not willing to bend it to achieve the result that I suspect most of the Justices think is right. In this case, there are other paths to that result as noted by both the majority and the concurrence, but that doesn't seem to be the decisive point for them. The statute says what it says, and the time automatically excluded for pretrial motions is only from motion to decision under the paragraph specifically addressing that issue, 18 U.S.C. §3161(h)(1)(D), not the more general language of other paragraphs. "Had Congress wished courts to exclude pretrial motions preparation time automatically, it could have said so." (n. 13)

This is a hint, though no more than that, of a favorable disposition toward the prosecution's argument in the AEDPA statute of limitations case, Holland v. Florida. That argument is also based on a straightforward reading of the statute, with a premise that Congress prescribed in detail the exceptions to the general rule and implicitly decided not to allow courts to make up additional exceptions. CJLF's brief is here.

An editorial in today's Los Angeles Times comments, "[w]e'd prefer a longer break" than the 14-day "break in custody" rule established by last week's Supreme Court decision in Maryland v. Shatzer.  While the editorial commends the Court for drawing a bright line rule that police may reinterrogate a suspect 14 days after the suspect's first interrogation, it also finds it disturbing that between Shatzer's first interrogation in 2003, and his second in 2006, Shatzer remained in prison.  The editorial comments that "[i]mprisonment is not 'normal life,'" and takes issue with the Court's conclusion that Shatzer, who had remained in prison, had returned to "normal life" for some time before the second interrogation.  The editorial writes, "[t]he court would have been truer to Miranda if it had recognized that, in this case, there was no gap in custody."

The problem with this argument is that Shatzer didn't really address Miranda, it addressed Edwards v. Arizona, and whether there could be an exception to Edwards' rule that once a suspect invokes his right to counsel police cannot reinterrogate the suspect unless he initiates further communication.  Edwards was intended to prevent police from holding suspects in jail and using coercive measures to badger them into giving confessions. 

Last week's decision in Shatzer acknowledged that badgering and police coercion are far less likely when a suspect has been released from the interrogation room "and returned to his normal life for some time before the later reinterrogation."  The decision acknowledged that when a suspect has been released and returns to his daily routines "there is little reason to think that [a suspect's] change of heart regarding interrogation without counsel has been coerced."  The suspect in Edwards had not been released, and had been held overnight and questioned until he confessed.  Edwards sought to reinforce Miranda by ending this type of practice, and the exception to Edwards recognized in Shatzer does not undermine the Fifth Amendment's protection from compelled self-incrimination.  Miranda warnings must be read to suspects and interrogation cannot continue until a suspect waives his rights.  Shatzer simply recognized that a suspect could have a "change of heart" and might voluntarily answer police questions 14 days after his first interrogation.  

Can conduct suggest a waiver?  That is what the Supreme Court struggled to decide in today's oral arguments in Berghuis v. Thompkins.  In Thompkins, the Court is asked to address whether a suspect has impliedly waived his right to counsel when he engages in a very limited conversation with officers and "[does] not invoke [his Miranda rights] but [does] not waive them," but confesses to the crime.  Jesse J. Holland writes for the Associated Press that during today's arguments several "Justices indicated they would let [Thompkins'] confession stand, saying suspects should tell police that they want to be silent to take advantage of that Miranda right." 

The decision may come down to how the Court addresses the question of whether officers must imply waiver from a suspect's silence, or whether a suspect must affirmatively invoke his right to remain silent during a two hour and fifteen minute interrogation.  The Court's precedents have left the answer unclear.  As Chief Justice Roberts points out early during the state's oral arguments, "The question of course is not whether we think 2 and a quarter hours under all the circumstances is -- is too long under our precedent. The question is instead whether it would be unreasonable for the State court to determine otherwise." 

CJLF's brief in Thompkins is available here.

The U.S. Supreme Court announced its decision in Maryland v. Shatzer (08-680) today.  The opinion is available here.  Our brief in the case is available here. 

The decision recognizes an exception to the requirement in Edwards v. Arizona that an officer must cease interrogation once a suspect invoked his right to counsel, and established that a "break in custody" permits the police to resume questioning a suspect who had previously asked for a lawyer.  Seven members of the Court agreed that if the "break in custody" lasts more than 14 days between interrogations, Edwards did not require suppression of the confession.  Justices Thomas and Stevens did not join the 14-day rule.

Update: Tony Mauro has this story for the NLJ: "'Miranda' dealt one-two punch by high court"

The Supreme Court today summarily reversed yet another federal court of appeals decision overturning a state court based on the federal court's own dubious extrapolation from Supreme Court precedent, rather than because anything in the state court decision is actually contrary to Supreme Court precedent. That misuse of habeas for pushing the envelope has been error under case law since the 1989 decision of Teague v. Lane, and it has been forbidden by an Act of Congress since 1996. Yet some federal judges still don't get it.

The only thing unusual in today's summary reversal is that it was the Fifth Circuit that crossed the line. Usually it is the Ninth or the Sixth.

In Thaler v. Haynes, the prosecutor said he challenged a juror because she was not taking this capital case seriously enough. The judge believed him, but the judge who decided the motion was not the same judge who conducted the voir dire.  While it helps if the same judge also observed the voir dire, it takes a very strained reading of Batson v. Kentucky to find a requirement to that effect. What if the judge who conducted voir dire died suddenly between voir dire and the Batson motion. Would the defendant have an automatic entitlement to have his motion granted? The Texas Court of Criminal Appeals didn't buy it. Neither did the federal district judge.

The Fifth Circuit granted habeas relief.  For the "clearly established" requirement that a challenge based on juror demeanor must be judged by the judge who presided at voir dire, the Fifth Circuit cited Snyder v. Louisiana, 552 U.S. 472 (2008).  The Supreme Court today noted that even if Snyder had held that (it didn't), Snyder was decided six years after the relevant state court opinion. Stare decisis requires obedience, not clairvoyance.

In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court held that the Equal Protection Clause forbids use of peremptory challenges to discriminate against prospective jurors on the basis of their race. The rule is more easily stated than applied. Among other problems, exactly who is a member of a racial minority, and whose perception of that status matters?

In United States v. Guerrero, No. 09-30066, decided today by the Ninth Circuit, the prosecution challenged juror D.T.  Defense counsel made a Batson challenge, saying, "She looked like she may have some native American or Hispanic background." The prosecutor didn't think she was a minority at all. Neither did the judge. All three were wrong. In the identification section of the questionnaire, which had been removed from the version provided to counsel, she had "identified herself as 'Native Hawaiian/Pacific Islander.' " As greater acceptance and prevalence of interracial marriage produces more people of mixed race, we are going to get more people not easily categorized.

Is it possible for a prosecutor to commit a Batson violation if he genuinely believes the juror is "white," assuming he is not trying to challenge whites off the jury? The panel majority in this case (Judges Tallman and Beezer) thought not. "The problem here is that there is no evidence that race played any role in the decision to strike the prospective juror because neither the prosecutor nor the judge recognized her as a minority." Judge Gould dissented.

....is the title of Stuart Taylor's devastating piece in today's National Journal.  Taylor, a moderate who remains critical of waterboarding (and the death penalty), does not let ideology get in the way of fact.  He is appalled at the administration's lack of sobriety in obtaining what one day is certain to be vital intelligence.

The whole article is a must-read.  Here's a sample:

[T]he rationalizations by Attorney General Eric Holder and other administration apologists have been...breathtakingly bereft of seriousness about the need for aggressive interrogation to protect our country.

Abdulmutallab might have been the first of a dozen Christmas Day bombers seeking to perfect the Bojinka plot, for all Holder and his colleagues knew at the time. It was sheer luck that this was not the case.

And the decision to read Abdulmutallab his rights, bring him a lawyer, and stop asking questions may yet get Americans murdered by his co-conspirators in Yemen -- who might have been located and captured or killed but for his five weeks of post-Miranda silence.

Federal officials are considering charging Scott Roeder with violating the federal Freedom of Access to Clinic Entrances Act (FACE), reports Judy Thomas for the Kansas City Star. This is despite the fact that Roeder has already been convicted of murder in state court for killing abortion doctor George Tiller.

Constitutionally, the "dual sovereignty" doctrine permits the federal government to prosecute after a conviction or acquittal in state court for the same crime. As a matter of policy, though, it is rarely done. It is justified, in my opinion, when an acquittal or a grossly inadequate sentence is the result of some major malfunction of the state court system. That occurred in cases of violence against civil rights workers in the early 60s, for example. I see no reason for it here. Roeder was convicted of the highest degree of offense available under Kansas law, first-degree murder. (The crime is not capital under either Kansas or federal law.)  A 51-year-old man who is ineligible for parole for 50 years is not going to see the outside of the prison wall again.

The other justification given in the article is to investigate whether others were involved in a conspiracy. I think other tools are more appropriate for that.

Generally speaking, crimes by one person against another should be matters of state criminal law. Federal law enforcement should be used for inherently federal issues such as national security, smuggling, or counterfeiting, large organized crimes rings that cross state lines and are beyond the capacity of any one state to prosecute, and malfunctions of the state system itself.

Sir William Blackstone noted centuries ago that it is "better that ten guilty persons escape than that one innocent suffer." To that end, the system is intentionally tilted in the defendant's favor with such advantages as the requirement of proof beyond a reasonable doubt. But if one of those ten guilty persons has accomplices and they are tried separately, does it follow that they must also escape? Not in California, as of today. The California Supreme Court held in People v. Superior Court (Sparks), S164614:

Real party in interest, Dustin William Sparks (hereafter defendant or Sparks), was charged with two felony murders. Before his case came to trial, two other persons were tried for the same murders. One was convicted of voluntary manslaughter, and the other was acquitted. Concerned about possible inconsistent verdicts, and applying the doctrine of nonmutual collateral estoppel adopted in a criminal case in People v. Taylor (1974) 12 Cal.3d 686 (Taylor), the superior court ruled that those verdicts prohibit the prosecution from trying defendant for a crime greater than voluntary manslaughter.

We conclude that decisions postdating Taylor, supra, 12 Cal.3d 686, including decisions from this court and the United States Supreme Court, have undermined Taylor's reasoning and the authority on which it relied. Occasional inconsistent jury verdicts are inevitable in our criminal justice system. If a verdict regarding one participant in alleged criminal conduct is inconsistent with other verdicts, all of the verdicts may stand. (Standefer v. United States (1980) 447 U.S. 10, 25-26 (Standefer); People v. Palmer (2001) 24 Cal.4th 856, 860 (Palmer).) Accordingly, a verdict regarding one defendant has no effect on the trial of a different defendant. Courts should determine the propriety of a prosecution based on that prosecution's own record, not a different record. Nonmutual collateral estoppel does not apply to verdicts in criminal cases.

This is a unanimous opinion by Justice Chin. Another bad precedent from California criminal jurisprudence's dark ages bites the dust.

On Monday, the California Supreme Court will answer the following questions in People v. Superior Court (Sparks):

(1) Did principles of collateral estoppel, as applied in People v. Taylor (1974) 12 Cal.3d 686, preclude the prosecution from trying defendant for murder on a felony-murder theory after the actual killer had been acquitted of murder on such a theory? (2) Is Taylor still good law, or should that decision be overruled or disapproved?

Last Thursday, in an opinion authored by Justice Werdegar, the California Supreme Court decided that its 1971 decision in People v. Burton, that a minor's request to speak with his parent invoked his Fifth Amendment right to silence, was no longer good law in light of the United States Supreme Court decision in Fare v. Michael C. 

In Burton, a 16-year-old-minor was convicted of murder based on the confession he made in police custody.  He had asked to speak with his father, and police refused.  The police also refused the father's request to speak with his son.  The California Supreme Court reversed the conviction.  It believed the 16-year-old's request satisfied Miranda v. Arizona's requirement that police cease interrogation "if the accused indicates in any manner that he wishes to remain silent or consult an attorney."  The opinion, written by Justice Sullivan, reasoned that the minor's request for a parent was analogous to an adult's request for an attorney, and held that "when... a minor is taken into custody and is subject to interrogation, without the presence of an attorney, his request to see one of his parents,... must, in the evidence demanding a contrary conclusion, be construed to indicate that the minor desires to invoke his Fifth Amendment privilege."  Burton thereby created the presumption that a minor's request to see a parent invoked his right to remain silent.

The Supreme Court's decision in Fare v. Michael C. weakened the strength of Burton's presumption. 

From the California Supreme Court's decision in People v. Robinson, S158528, today:

The Supreme Court issued its one sentence decision in the Confrontation Clause case, Briscoe v. Virginia (07-11191) today. 

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

The per curiam decision is just one of several recent cases that the Court has scheduled for full briefing and oral argument and then dumped.  We'll post a more detailed analysis later today.

Even the Washington Post  --  ever the cheerleader for a Hope for the Best national security policy  --  gets it, sort of, as respects the botched interrogation of the Christmas day bomber.  In today's editorial, the Post states:

UMAR FAROUK Abdulmutallab was nabbed in Detroit on board Northwest Flight 253 after trying unsuccessfully to ignite explosives sewn into his underwear. The Obama administration had three options: It could charge him in federal court. It could detain him as an enemy belligerent. Or it could hold him for prolonged questioning and later indict him, ensuring that nothing Mr. Abdulmutallab said during questioning was used against him in court.

It is now clear that the administration did not give serious thought to anything but Door No. 1. This was myopic, irresponsible and potentially dangerous.