January 14, 2009

In 2 new Supreme Court cases — one a clear conservative-liberal split and one decidedly not — the government wins and the criminal defendant loses.

Here's Herring v. United States:
Officers in Coffee County arrested petitioner Herring based on a warrant listed in neighboring Dale County’s database. A search incident to that arrest yielded drugs and a gun. It was then revealed that the warrant had been recalled months earlier, though this information had never been entered into the database....

Held: When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply....

To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.
The opinion was written by the Chief Justice, joined by Justices Scalia, Kennedy, Thomas, and Alito. There is a dissenting opinion by Justice Ginsburg, joined by Justices Stevens, Souter, and Breyer. Here we see a clear split between conservative and liberal Justices, with the conservatives siding with the government and the liberals with the criminal defendant.

Here's Oregon v. Ice:
Respondent Ice twice entered an 11-year-old girl’s residence and sexually assaulted her. For each of the incidents, an Oregon jury found Ice guilty of first-degree burglary for entering with the intent to commit sexual abuse; first-degree sexual assault for touching the victim’s vagina; and first-degree sexual assault for touching her breasts....

Held: In light of historical practice and the States’ authority over administration of their criminal justice systems, the Sixth Amendment does not inhibit States from assigning to judges, rather than to juries, the finding of facts necessary to the imposition of consecutive, rather than concurrent, sentences for multiple offenses.
Justice Ginsburg wrote the opinion, joined by Justices Stevens, Kennedy, Breyer, and Alito. Justice Scalia wrote the dissenting opinion, joined by the Chief Justice, and Justices Souter and Thomas. In this case too, the government wins, but it is not a clear split between conservative and liberal Justices, and, interestingly, there are more conservatives seeing a constitutional right, and more liberals siding with the government and conservatives and liberals on both sides.

Justice Ginsburg writes:

Members of this Court have warned against “wooden, unyielding insistence on expanding the Apprendi doctrine far beyond its necessary boundaries.”.... The jury-trial right is best honored through a “principled rationale” that applies the rule of the Apprendi cases “within the central sphere of their concern.”... Our disposition today—upholding an Oregon statute that assigns to judges a decision that has not traditionally belonged to the jury—is faithful to that aim.
Justice Scalia writes:
The rule of Apprendi v. New Jersey, 530 U. S. 466 (2000) , is clear: Any fact—other than that of a prior conviction—that increases the maximum punishment to which a defendant may be sentenced must be admitted by the defendant or proved beyond a reasonable doubt to a jury. Oregon’s sentencing scheme allows judges rather than juries to find the facts necessary to commit defendants to longer prison sentences, and thus directly contradicts what we held eight years ago and have reaffirmed several times since....

The Court’s peroration says that “[t]he jury-trial right is best honored through a ‘principled rationale’ that applies the rule of the Apprendi cases ‘within the central sphere of their concern.’ ” ... Undoubtedly so. But we have hitherto considered “the central sphere of their concern” to be facts necessary to the increase of the defendant’s sentence beyond what the jury verdict alone justifies. “If the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied.”... If the doubling or tripling of a defendant’s jail time through fact-dependent consecutive sentencing does not meet this description, nothing does.


chuck b. said...

Twice, Ice? C'mon, dude. Stop rapin'.

Simon said...

How one sees Herring, I suppose, turns on whether one sees the exclusionary rule as protecting particular individuals in particular cases, or serving as a deterrent against police misconduct generally. If you think the latter -- which I'd argue is more consistent with the Fourth Amendment's text in the first place, insofar as it's an odd species: a right of the people that is expressed and exercised through individual persons -- a result that turns on whether exclusion has deterrent effect makes a great deal of sense.

Justice Ginsburg's dissent opens with an interesting illustration of your observation that "Constitutional cases serve two broad goals: they provide relief to those deprived of their rights, and they announce rules of law. They speak to the parties to the case and they speak to the rest of society. Cases are disputes that the courts must address, but they are also occasions for saying what the law is." Althouse, Saying What Rights Are - In and Out of Context, 1991 Wis. L. Rev. 929, 939; cf. Frank Easterbrook, The Supreme Court, 1983 Term: Foreword, 98 Harv. L. Rev. 4, 5 (1984). Justice Ginsburg speaks to the rest of society: "the most serious impact of the Court’s holding will be on innocent persons wrongfully arrested based on erroneous information [carelessly maintained] in a computer data base" (slip op. at 2 (internal quotation marks omitted; alteration in original)). But in emphasizing the lawsaying function, Ginsburg glosses over the obvious and fails to speak accurately to the parties to the case: no matter that the search was illegal, or that there was negligence by the clerk, this case did not involve an innocent person wrongfully arrested based on erroneous information. It involved a wrongful arrest on erroneous information, to be sure, but as even Ginsburg can't bring herself to deny, "the police found methamphetamine in Herring’s pocket and a pistol in his truck."

Expat(ish) said...

Lawyers are fascinating, but I'm trying to decided if they should be highly regulated or just limited by some sort of cap-and-trade scheme.

I know it is jejune and simplistic of me, but do any of these panjandrums care if the guys were, you know, guilty?


Simon said...
This comment has been removed by the author.
Ann Althouse said...

chuck b. said..."Twice, Ice? C'mon, dude. Stop rapin'."

Yeah, who wrote that syllabus, with the phrase "Ice twice"? That's bad writing even when you aren't reading about the sexual assault on an 11-year-old girl.

Tone deaf.

Ann Althouse said...

"I know it is jejune and simplistic of me, but do any of these panjandrums care if the guys were, you know, guilty?"

Considering that the gov't won both cases, I'd say they most certainly do.

Joe said...

I'm bothered by the creation of two charges for what I presume were the same sexual act. You see this in other areas where someone is charges with multiple crimes for the very same act--the bigger problem being that the local authorities take a crack with one set of the crimes and the federals with another. When that doesn't work, just invent more "micro" crimes and go at the criminal again. This seems to contradict at least the spirit of the constitution if not the intent.

Henry Buck said...

I don't know Joe. Do you recall the story a few years ago about the college that required a boy to request, and a girl to give, explicit permission for each stage of sexual conduct?

Boy: "May I hold your hand?"
Girl: "Yes."
Boy: "May I rub your neck?"
Girl: "No."
Boy: "May I kiss you?"
Girl: "Yes."
Girl: "Hey, you just rubbed my neck!"
Boy: "No, I was just holding your head so I could get a better a better angle on the kiss."
Girl: "Harrassment!"

So, you see, there may have been more than one offensive act committed.

Lem said...

The Supremes are already hard at work making the decisions while Obama does nothing to revive the economy.

Simon said...

Joe said...
"I'm bothered by the creation of two charges for what I presume were the same sexual act. You see this in other areas where someone is charges with multiple crimes for the very same act"

This is similar to the "overlap" problem that Judge Easterbrook wrote about in United States v. Scialabba, 282 F.3d 475 (2002).

traditionalguy said...

True legal conservatives have always relied upon the 12 person Jury right as THE Gurardian of our liberties. So Scalia and the other new consevatives speak out against returning to Rule by Judges without juries. What if a Gov. Blago type appointed the judges in cases where attorneys/clients may fear they are on his Enemies list [I.e., persons who have refused to contribute the $$$ demanded].... In the other case the more liberal Jurists, as true since 1965, take rightous pride in stiffing the police with Exclusionary Rules for evidence that the Bad police bring into court. This is done no matter how guilty the Defendant obviously is as shown by that excluded evidence [Think of Billy Ayers walking free]. ...So these two cases may seem different but are a matched pair giving each side a decision that they want under their percieved roles on the Court. The DA's/police are happy with one and the Criminal Defence Bar are happy with one. Who says the SCOTUSA is not good at politics.