Recently in U.S. Supreme Court Category

All fifty states utilize implied consent laws to require motorists arrested on suspicion of driving under the influence ("DUI") to submit to a chemical test to determine the amount of alcohol and/or drugs in her/her system.  The blood alcohol concentration ("BAC") results are the best evidence of intoxication level to be used in a subsequent DUI prosecution.  

Earlier this week, the Supreme Court ruled on three consolidated cases brought by three different motorists who challenged the criminal penalty for refusing to consent to a chemical test of their breath, blood, or urine.  The post I wrote summarizing these three cases can be found here.  

In Minnesota and North Dakota (and 11 other states), it a separate crime to refuse to a chemical test.  California does not make refusal a separate crime, but instead it can be used as a sentencing enhancement if the motorist is convicted of a DUI.  Now that Birchfield/Bernard/Beylund hold that a warrant is required for all chemical testing of blood, the California legislature will need to modify the current law (VC 23612) to comport with the Supreme Court's ruling.  
This morning, the U.S. Supreme Court decided three consolidated cases involving the implied consent laws that all 50 states utilize in their efforts to combat the serious problem of drunk driving.  The implied consent laws imply a lawfully arrested motorist's consent to chemical testing as a matter of law and the state uses the test results as probative evidence of intoxication in a subsequent DUI prosecution.  Some motorists, usually repeat offenders, refuse requests for testing because they know that the Blood Alcohol Concentration ("BAC") results would impose harsher penalties than that of simply refusing a test.  The standard legal consequence in most states for test refusal is the suspension or revocation of a motorist's driver's license.  A refusal can also be admitted as evidence of intoxication in a DUI prosecution.  Based on recidivist drunk driver statistics, it does not matter if they have a driver's license or not.  The suspension or revocation of a driver's license does nothing to stop a person from drinking and driving if that person chooses to get into a car and drive while intoxicated.

Thirteen states gave some teeth to their implied consent laws and made it a crime to refuse testing.


Mixed Result in DUI Cases

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In three consolidated cases, of which the lead is Birchfield v. North Dakota, No. 14-1468, the U.S. Supreme Court held today:

Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.
CJLF filed a brief in one of the three, Beylund v. Levi, No. 14-1507, a civil case challenging the suspension of Beylund's driver's license for refusing a blood test after being informed he could be criminally prosecuted for refusing.  In addition to the legality of the requirement, CJLF argued that the suspension was valid regardless, as the federal Fourth Amendment exclusionary rule does not apply to civil proceedings.  The U.S. Supreme Court left that question open for the North Dakota Supreme Court on remand on the theory that state law might "provide a remedy" not required by federal law.

Although we did not get everything we wanted, this is mostly a win for the life-saving cause of getting drunks off the road. 
As noted briefly this morning, the U.S. Supreme Court decided a case on the Fourth Amendment exclusionary rule, Utah v. Strieff, No. 14-1373.  The Fourth Amendment exclusionary rule is the rule that an item of evidence -- regardless of how reliable it may be and much value it may have in guiding the trier of fact to the truth of the matter to be decided in the criminal case -- must be excluded if it is found that the police violated the complex rules governing search and seizures under that Amendment.

The exclusionary rule has no basis in the text of the Fourth Amendment.  It was unknown to American law at the time the Amendment was adopted and for a century thereafter.  It was unknown to the pre-Independence law of England, from which our legal tradition was derived.  The rule was created by the Supreme Court out of whole cloth in the twentieth century and the tail end of the nineteenth, a century after Amendment was adopted.  The question appears in few court decisions before that time because there obviously was no such rule, and the few defendants to raise the proposition merely got decisions stating flatly that there was no such rule.  This history is traced in CJLF's brief in Strieff, along with a rebuttal of the lone academic to advance a contrary proposition.  For an originalist, that is enough to dispose of any case where the Fourth Amendment is relied on as the sole authority for the exclusion of evidence.  There is no such legitimate rule.

However, the Supreme Court decided to the contrary in Mapp v. Ohio (1961), a decision which Justice Harlan noted in dissent was so far in excess of the limits of the Supreme Court's legitimate constitutional powers as to make the Court's voice "only a voice of power, not of reason."  In later years, varying majorities of the Court have been unwilling to overrule Mapp, but Justice Harlan's description of the rule as "so unwise in principle and so inexpedient in policy" was never far below the surface, and numerous limitations and exceptions have been devised to reduce the harsh effects of the rule in its bare form.

Today's decision in Strieff is specifically on the "attenuation" exception, but the influence of the "good faith" cases is also evident, making a clear connection between the two branches of Fourth Amendment jurisprudence.
The U.S. Supreme Court has reversed a decision of the Utah Supreme Court suppressing evidence from a stop conducted in good faith by a police officer.  Utah v. Strieff, No. 14-1373, was decided 5-3.

On a quick scan, it does not appear to be the sweeping decision I was hoping for, but a win's a win.

Update:  A follow-up post is here.  CJLF's press release is here.

Today's SCOTUS Cases

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Today the U.S. Supreme Court issued decisions in three civil cases and no criminal cases.  However, all three of the civil cases have some interesting and potentially relevant aspects.
The United States Supreme Court issued three decisions today, none with major implications.

In Puerto Rico v. Sanchez Valle, No. 15-108, the Court decided that the "dual sovereignty" exception to the Double Jeopardy Clause does not apply to Puerto Rico.  That is, a person who has already been prosecuted for a crime by the United States (in this case, ending in a guilty plea) cannot be prosecuted by the Commonwealth of Puerto Rico for the same crime.  The Commonwealth, unlike like a State, is a creature of the federal government, not a separate sovereign.  As decided, the case is more about Puerto Rico's status than it is about the Double Jeopardy Clause.  Justice Ginsburg, joined by Justice Thomas, concurs but would undertake a broader reexamination of dual sovereignty, another blow to the simplistic, one-dimensional model of categorizing Justices.

Williams
v. Pennsylvania, No. 15-5040, involves Ronald Castille, the District Attorney of Philadelphia who became the Chief Justice of Pennsylvania.  As DA, he signed off on his office seeking the death penalty against murderer Terrance Williams.  The Court holds that his failure to recuse himself from the case as Chief Justice when it reached the Pennsylvania Supreme Court violated the Due Process Clause.  Opinion by Justice Kennedy.  Chief Justice Roberts and Justices Thomas and Alito dissent.

Court watchers will remember that in the first few years after Justice Kagan moved to the Court from the Solicitor General's office she recused in every federal case where her office had been involved, a large number of cases.

In Dietz v. Bouldin, No. 15-458, the court holds that a "federal district court has a limited inherent power to rescind a jury discharge order and recall a jury in a civil case for further deliberations after identifying an error in the jury's verdict."  Probably limited impact on criminal cases, but I thought it was worth noting here.
The United States Supreme Court this morning took up two capital cases from Texas, Moore v. Texas, No. 15-797, and Buck v. Stephens, No. 15-8049.

Moore has stated two "questions presented" in his petition.  One has to do with the definition of intellectual disability (formerly called mental retardation) for the purpose of the categorical exemption from capital punishment established in Atkins v. Virginia.  The second is the infamous "Lackey claim," that length of time on death row alone is enough reason to vacate an otherwise valid sentence, even when the state has been fighting tooth and nail against delay and the defendant has been causing it.  The latter has been turned down by the high court again and again, never getting more than two votes to take it up.  The order granting certiorari does not limit the grant to question 1, as I would have expected, but it is possible that this is an oversight and the court will amend the grant to exclude the Lackey claimUpdate:  The orders list and the docket now indicate that the grant of certiorari is limited to Question 1, the Atkins claim, turning down the Lackey claim.

In Buck, the defendant's own expert testified at some length that the defendant would not be dangerous in a prison environment, an opinion highly favorable to the defense on a critical question.  In the course of the testimony, the expert testified regarding the factors that correlate with rates of violent crime.  In response to a question from defense counsel, the expert said, "It's a sad commentary that minorities, Hispanics and black people, are overrepresented in the Criminal Justice System." 

This is not a claim that race causes people to be violent.  It is simply a statement of an unfortunate but undeniable demographic reality.  This statement, and a brief follow-up on cross-examination, have been widely misrepresented by Buck's lawyers and the media.  The full transcript of the testimony is here.

In other action, the high court decided a procedural question involving the Prison Litigation Reform Act and "exhaustion" in Ross v. Blake.
Adam Liptak has this amusing article in the NYT on a panel discussion with Justices Ruth Ginsburg and Sonia Sotomayor discussing lunch at the Supreme Court.  To keep things collegial, they have an "absolute rule" against talking about cases.

They also dropped a few nuggets about their present and former colleagues' food choices.

Justice David H. Souter, who retired in 2009, would subsist on a lunch of "plain yogurt," Justice Ginsburg said, with distaste. "Just plain yogurt."
*                    *                  *
Chief Justice John G. Roberts Jr. orders a salad for lunch from the court's cafeteria, Justice Sotomayor said, while Justices Anthony M. Kennedy and Samuel A. Alito Jr. bring food from home. "And sometimes I see Sam's fare and think maybe I should eat dinner with him," she said.
Yes, definitely, Justice Sotomayor.  Have whatever Sam's having.  Can't hurt.

Liptak reports, "The court suffered a culinary loss in February with the death of Justice Antonin Scalia"  They can no longer eat the things he kills.

Update:  Andrew Hamm has more on this event at SCOTUSblog.
Without dissent, the United States Supreme Court has once again summarily reversed the decision of the U.S. Court of Appeals for the Ninth Circuit.  "Summarily" means the error was so obvious that the high court could reverse on the state's petition alone, without setting the case for full briefing and argument.

The rule in the federal courts and every state is that a criminal defendant who can make a claim on his initial appeal on the trial record must do so or lose it.  He can't wait for a subsequent "collateral" attack (habeas corpus or a substitute for it) to make such a claim.  The technical term for rules such as this is "procedural default," but it may be more easily understood as the "speak now or forever hold your peace rule."  There are generally exceptions to mitigate the harshness of these rules.  For example, a strong showing of actual innocence of the crime is an exception in both federal and California courts.

When a state prisoner has completed his state appeals and seeks relief in federal courts, Supreme Court precedent has long required the federal court to respect the state's procedural default rules.  For many years, the Ninth Circuit has evaded this requirement for California prisoners by blithely declaring the state's rules "inadequate."  In 2011, the Supreme Court reversed one such evasion in Walker v. Martin, a unanimous opinion by Justice Ginsburg.  The language was broad enough to fully restore California's rules and we thought that battle was won.  Astonishingly, the Ninth Circuit brushed Martin aside, held that it only applied to the kind of rule specifically at issue in that case, and declared that it did not apply to California's much more common default-on-appeal rule described in the previous paragraph. 

I thought that was a shocking -- and intentional -- evasion of controlling Supreme Court precedent by a lower court that simply did not like the result.

Today we learned that the Supreme Court thinks so, too.

Infected Prosecutions Get Tanked

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I live near Washington, DC.  The big criminal law news here today consists of two cases. One is the SCOTUS reversal of the conviction of a black Georgia murderer on grounds that the government engaged in racially biased jury strikes.  Kent has his typically thoughtful and analytic description here.  While, as Kent notes, there are grounds to question the procedural setting of the case, the Chief Justice's opinion documents disturbing reasons to think the defendant's claims of racial bias were true.

The other news item is the acquittal on all counts of a white Baltimore policeman in the Freddie Gray case.  He had been charged, along with five other officers (two other whites and three blacks) with helping cause Gray's death in police custody. The case was brought by a radical black prosecutor who, after announcing the filing of charges, held an outdoor, campaign-style news conference to congratulate herself, then attended a rock concert (not a typo) ostensibly to laud some sort of "why-can't-we-all-get-along" theme, but actually designed, so it certainly seemed, to further inflame racial passions against the accused.  I discussed the prosecutor, Marilyn Mosby, and her antics several times, e.g., here.

A number of thoughts come to mind from today's stories.

Reversal in an Ugly Batson Case

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When cases with ugly facts reach the U.S. Supreme Court, they sometimes cause damage that lasts a very long time.  Foster v. Chatman, No. 14-8349, decided this morning, is a case with ugly facts.  How much damage it will do to states seeking to preserve their judgments in other cases where the defendant's collateral attack is much weaker remains to be seen.

At the root of this case is a horrible crime, with no real doubt that Foster committed it.  Not only did he confess, but the victim's possessions were recovered from his home and from the homes of his sisters, to whom he had doled out some of the loot.

Until 1986, there was no constitutional prohibition against the prosecution taking race into account in exercising its peremptory challenges in jury selection in individual cases, although a pattern of such use that had the effect of excluding black veniremen from jury service overall was actionable.  That changed when the Supreme Court decided Batson v. Kentucky.  The Foster case was tried only four months later.
A perennial problem in criminal law, and the closely related area of deportation for crime, is the fact that the laws of one jurisdiction must take into account crimes prosecuted under the law of another jurisdiction.  What do we do when the elements of the crimes don't match up completely?

Federal immigration law provides for deportation, with no exceptions and expedited process, for aliens who commit an "aggravated felony."  The principle is sound, but the definition of "aggravated felony" needs a lot of work.  Congress really needs to pay some attention to this.

The definition refers to a list of federal offenses, many of which have elements of effects on interstate commerce because in many cases the federal government does not have the authority to make an act criminal without such a connection.  If a person is convicted in state court of an offense which is the same except for the interstate commerce element, is that an "aggravated felony" for deportation purposes?  Yes, that's one of the easier questions in this area.

Justice Kagan wrote the opinion of the court in Luna-Torres v. Lynch, No. 14-1096 (5-3).  Justice Sotomayor, joined by Justices Thomas and Breyer, dissented.  They would apply the words of the statute literally. 

There is something to be said for the view that if Congress screwed up the wording, and it did, it's up to Congress to fix it.  Even so, this is a good result in the case and for the law generally.  Luna is an arsonist, and we don't need him in this country.

Speedy Trial Rights Post-Trial?

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The expression "Well, Duh!" has been out of vogue for many years, but every once in a while I wonder if we should bring it back.

The Sixth Amendment guarantees a right to a speedy trial.  Does that guarantee apply after trial, or after a person has waived trial by pleading guilty?  Of course not.  "We hold that the guarantee protects the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges," Justice Ginsburg wrote for a unanimous court in Betterman v. Montana, No. 14-1457, announced this morning.

The opinion notes that other provisions of the Constitution may provide protection from inordinate delay between conviction and sentence.  It certainly is unjust to hold a person longer pending sentencing than his sentence is likely to be.  But Betterman's lawyer did not bring the claim under the Due Process Clause or anything other than the Speedy Trial Clause, so that issue is not in the case.

Donald Trump's Pretty-Short List

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For many of us who were less than enthused to see Donald Trump win the Republican nomination, the general election choice nonetheless seemed to be a clear one based on the kinds of judges the respective nominees would appoint, especially to the Supreme Court.  The Trump campaign apparently wants to reinforce that point by releasing a list of possible Supreme Court appointments.  Bill noted the release a few minutes ago, and Jill Colvin and Mark Sherman have this report for AP.  The list is:

Steven Colloton of the Eighth Circuit (Iowa)
Allison Eid of the Colorado Supreme Court
Raymond Gruender of the Eighth Circuit (Mo.)
Thomas Hardiman of the Third Circuit (Penn.)
Raymond Kethledge of the Sixth Circuit (Mich.)
Thomas Lee of the Utah Supreme Court
Joan Larsen of the Michigan Supreme Court
William Pryor of the Eleventh Circuit (Ala.)
David Stras of the Minnesota Supreme Court
Diane Sykes of the Seventh Circuit (Wis.)
Don Willett of the Texas Supreme Court

I am not familiar with the jurisprudence of all 11, but I do think that William Pryor would make a very fitting successor to Justice Scalia.  Confirmation would be a bloody fight, but if we hold the Senate it is a fight we would win.

The larger question is whether Mr. Trump can and will pivot from the crass bluster that got him this far into a man of serious policy, capable of winning the general election and then being an effective President.  Many have serious doubts, but this looks like a good start.

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