The following are summaries of criminal justice related cases decided by the Supreme Court during the 2011 Term and excerpted from the ACLU Summary of the 2011 Supreme Court Term (see link for full report)
All cases are linked to the SCOTUSBlog case files.
In U.S. v. Jones, 132 S.Ct. 945 (Jan. 23, 2012)(9-0), the Court unanimously ruled that the placement of a GPS device on a suspect’s car constitutes a search under the Fourth Amendment. Writing for five members of the Court, Justice Scalia held that the physical intrusion would have been regarded as a search when the Fourth Amendment was adopted, and found it unnecessary to go further. Justice Sotomayor joined Justice Scalia’s opinion but also wrote separately to express her concern about the impact of new technology, and the government’s ability to exploit it, on our reasonable expectations of privacy. Justice Alito, joined by Justices Ginsburg, Breyer and Kagan, concurred in the judgment but rejected Justice Scalia’s reliance on common law notions of trespass because they deemed it too narrow to address, for example, the related problem of cell phone tracking. As Justice Alito noted, it is the intrusion on our private lives not the intrusion on our property that triggers Fourth Amendment protection.
In Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510 (Apr. 2, 2012)(5-4), the Court upheld a jail policy subjecting all new detainees, including those arrested on minor offenses, to a visual strip search. Justice Kennedy’s majority opinion is filled with broad language about the danger of prisons, the need to defer to prison officials on security matters, and the difficulty of asking those officials to make case-by-case determinations of reasonable suspicion. In separate concurring opinions, however, Chief Justice Roberts and Justice Alito stressed the limits of the majority’s holding. Most significantly, perhaps, Justice Alito noted that “admission to the general jail population, with the concomitant humiliation of a strip search, may not be reasonable [for detainees arrested for a minor offense], particularly if an alternative procedure is feasible.” Id. at 1524. Justice Breyer’s dissent emphasized the humiliation involved in a strip search and the lack of evidence that such strip searches are necessary in all cases to preserve jail security.
Fifth Amendment – Miranda
In Bobby v. Dixon, 132 S.Ct. 26 (Nov. 7, 2011)(9-0)(per curiam), a unanimous Court summarily ruled that the Sixth Circuit had made two errors of Fifth Amendment law in reversing the murder conviction in this habeas proceeding. First, the Court held that the Fifth Amendment does not forbid the police from encouraging a suspect to confess by telling him (accurately or not) that another suspect is already cooperating. Second, the Court held that the defendant’s confession to murder after receiving Miranda warnings was not tainted by an earlier and excluded confession to forgery without Miranda warnings. Specifically, the Court distinguished Missouri v. Seibert, 542 U.S. 600 (2004), by noting that in this case, unlike Seibert, the Mirandized murder confession did not follow an un-Mirandized confession to the same crime, and the two confessions were separated by hours, not minutes. The Court also noted that the forgery confession was properly excluded because it was made without the benefit of Miranda warnings.
In Howes v. Fields, 132 S.Ct. 1181 (Feb. 21, 2012)(9-0), the Court rejected the proposition that a prisoner who is removed from the general population and questioned about a crime that occurred outside of prison is automatically in custody for Miranda purposes. Writing for a unanimous Court, Justice Alito held instead that the custodial determination must be based on the totality in circumstances. Here, he stressed that the prisoner was repeatedly told that he was free to leave the interrogation room, even though he was never given the option of declining the interrogation in the first place. Justices Ginsburg wrote a separate opinion, joined by Justices Breyer and Sotomayor. While agreeing that the law that applied in this context was not clearly established, and thus Fields was not entitled to habeas corpus, she would have reached a different conclusion on the merits if this case had been heard on direct review.
Fifth Amendment – Double Jeopardy
In Blueford v. Arkansas, 132 S.Ct. 2044 (May 24, 2012)(6-3), the Court ruled that the Double Jeopardy Clause did not bar the state from retrying the defendant for capital murder and first degree murder even though the jury in his first trial had announced in open court that they had unanimously voted against both charges. According to Chief Justice Roberts, that declaration in open court was not equivalent to a verdict of acquittal because the jury was sent back to deliberate on the lesser included charges of manslaughter and negligent homicide and might have revisited its initial decision on the top charges during those extended deliberations. Justice Sotomayor dissented on two grounds. First, Arkansas is a “hard transition” state, which requires the jury to reach a verdict on charges in order of severity. The jury’s declaration that it was deadlocked on the lesser charges in this case was thus tantamount to a declaration that it had acquitted on the top charges. Second, the judge could have resolved any ambiguity by simply asking the jury for a partial verdict. Given that available alternative, there was no “manifest necessity” to declare a mistrial.
Sixth Amendment – Ineffective Assistance of Counsel
In Missouri v. Frye, 132 S.Ct. 1399 (Mar. 21, 2012)(5-4), the Court ruled that that Sixth Amendment’s right to effective assistance of counsel extends to the plea bargaining stage where, as the Court pointed out, 97% of all federal prosecutions and 94% of all state prosecutions are resolved. Writing for the majority, Justice Kennedy then held that a lawyer’s failure to communicate a “formal” offer to his client will, “as a general rule,” demonstrate ineffective assistance. To demonstrate prejudice, a defendant must show a reasonable probability that he would have accepted the offer, a reasonability probability that the prosecution would not have withdrawn it, and a reasonable probability that the trial judge would have ratified the bargain struck by the parties. In this case, ineffective assistance was easily shown since there was no evidence in the record that defense counsel communicated a plea offer he had received from the prosecution that was more favorable than the plea that the defendant ultimately accepted. However, the Court remanded for a hearing to determine whether prejudice could be proved, and expressed some doubt on that point since the defendant was arrested for the same offense (driving with a revoked license) before his scheduled preliminary hearing.
In Lafler v. Cooper, 132 S.Ct. 1376 (Mar. 21, 2012)(5-4), a companion case to Missouri v. Frye, the Court reiterated its holding that ineffective assistance of counsel at the plea bargaining stage violates the Sixth Amendment and expressly rejected the argument, made by both Michigan and the United States, that any error in the plea bargaining process is purged if the subsequent trial and conviction are fair. Here, unlike Frye, the defendant was told of the plea offer but rejected it based on his lawyer’s mistaken description of the law and the strength of the prosecution’s case. Unlike Frye, the defendant in this case also proceeded to trial where he was convicted, rather than plead guilty before trial on less favorable terms than the prosecution initially offered. Like Frye, however, the defendant ultimately received a sentence more than 3
times longer than the prosecution’s plea offer. Under these circumstances, Justice Kennedy wrote, prejudice is clear and the only difficult question is remedy. Rather than prescribe a remedy, Justice Kennedy left it for trial judges to determine whether to impose the sentence that the defendant was initially offered, the sentence imposed after trial, or something in between. Justice Scalia’s dissent criticized the majority for constitutionalizing the plea bargaining process in the first place, and then creating a rule that any remedy for that right is discretionary.
Sixth Amendment – Confrontation Clause
In Hardy v. Cross, 132 S.Ct. 490 (Dec. 12, 2011)(9-0), the Court summarily reversed the Seventh Circuit’s grant of habeas corpus. The Court’s per curiam opinion concluded that the Seventh Circuit had given insufficient deference under the AEDPA to the state court’s conclusion that the prosecution had made reasonable efforts to obtain the live testimony of a key witness before determining that the witness was unavailable to testify and therefore allowing the prosecution to read her prior, cross-examined testimony from an earlier trial.
In Williams v. Illinois, 2012 WL 2202981 (June 18, 2012)(5-4), a deeply divided Court continued to grapple with how the Confrontation Clause applies to scientific reports. The question in this rape case was whether the defendant’s Confrontation Clause rights were violated when a prosecution expert was permitted to testify that DNA test results from an independent lab matched a DNA profile of the defendant in a police database. Writing for a four-person plurality, Justice Alito held that the Confrontation Clause did not apply for two independent reasons: First, the expert’s reference to the lab report (which she did not prepare), was not admitted to establish the truth of the report but only to establish the foundation for her testimony that there was a match between the two DNA samples. Second, the lab report was not “testimonial” because it was prepared to help find the perpetrator rather than to incriminate the defendant, who had not even been identified as a suspect at the time. Finally, the plurality emphasized that this case was tried before a judge rather than a jury, reducing the risk of confusion about the disputed testimony. Justice Thomas provided the critical fifth vote in a separate concurring opinion. While disagreeing with the plurality’s reasoning (meaning that the plurality’s reasoning was rejected by a majority of the Court – Justice Thomas plus the four dissenters), he concluded that the lab report lacked the formality and solemnity to be deemed “testimonial,” and thus was not covered by the Confrontation Clause. The dissent was written by Justice Kagan.
Sixth Amendment – Jury Trials
In Southern Union Co. v. U.S., 2012 WL 2344465 (June 21, 2012)(6-3), the Court held that the principle of Apprendi v. New Jersey, 530 U.S. 466 (2004), applies to criminal fines as well as imprisonment, and therefore any fact that increases the potential fine that a defendant faces upon conviction must be found by the jury beyond a reasonable doubt (except for the fact of a prior conviction). In this case, the corporate defendant was found guilty of violating federal environmental laws that assess a fine based on each day that the violation continues. Under these circumstances, Justice Sotomayor wrote, the jury must decide how long the violation lasted as part of its factfinding function, rather than leaving that determination to the judge in his sentencing role.
In Smith v. Cain, 132 S.Ct. 627 (Jan. 10, 2012)(8-1), the Court held that the prosecution’s failure to turn over exculpatory evidence impeaching the only eyewitness to connect the defendant to the crime required reversal of the defendant’s murder conviction under Brady v. Maryland, 373 U.S. 83 (1963). Writing for the majority, Chief Justice Roberts explained that exculpatory evidence is “material” for Brady purposes if there is a “reasonable probability” that it might have affected the jury’s verdict. That standard, he found, was easily met in this case.
In Perry v. New Hampshire, 132 S.Ct. 716 (Jan. 11, 2012)(8-1), the Court held that due process does not require trial judges to assess the reliability of an eyewitness identification before submitting it to the jury, even if the identification was obtained under suggestive circumstances, unless the police were responsible for creating those suggestive circumstances. Writing for the majority, Justice Ginsburg emphasized that it is generally up to the jury to decide the reliability of evidence in our criminal justice system. Justice Sotomayor’s dissent emphasized the unique persuasiveness of eyewitness testimony and its well-documented fallability.
In Minneci v. Pollard, 132 S.Ct. 617 (Jan. 10, 2012)(8-1), the Court held that private
prison guards could not be sued for violating the constitutional rights of federal prisoners in their custody “where that conduct is of a kind that typically falls within the scope of traditional state tort law (such as the conduct involving improper medical care at issue here.)” Id. at 626. Writing for the majority, Justice Breyer ruled that the availability of state tort remedies is a “special factor” that eliminates the need for a Bivens claim in this context. Justice Ginsburg was the sole dissenter.
In Messerschmidt v. Millender, 132 S.Ct. 1235 (Feb. 22, 2012)(6-3), the Court held that police officers executing a search warrant are entitled to qualified immunity unless it was “objectively unreasonable” for them to believe that the warrant met the requirements of probable cause. Writing for the majority, Chief Justice Roberts then analyzed the evidence in detail and concluded that the defendants in this case had acted reasonably in executing a warrant that authorized them to search for “any” guns and “any” indicia of gang membership. He further noted that it was appropriate to consider the fact that the defendants had sought approval from their police supervisors and the prosecutor’s office before seeking a warrant in determining whether their actions were objectively reasonable.
In Arizona v. U.S., 2012 WL 2368661 (June 25, 2012)(5-3), the Court struck down three of the four provisions of Arizona’s S.B. 1070 that had been challenged on federal preemption grounds. One of the invalidated provisions made it a state law crime for aliens to seek or hold a job without authorization; a second made it a crime for aliens to fail to comply with federal registration requirements; the third empowered police in Arizona to make warrantless arrests based on probable cause to believe a person has committed a “public offense” that makes him or her removable from the United States. Significantly, however, the Court held that the most controversial portion of the law, the so-called “show-me-your-papers” provision, had been improperly enjoined by the lower courts. That provision directs police in Arizona to demand immigration papers from anyone who they have lawfully stopped if there is reason to believe that the person stopped is in the country illegally. Writing for the majority, Justice Kennedy was careful to note that the “show-me-your-papers” provision might be unconstitutional as applied –if, for example, it leads to racial profiling or unreasonably prolonged detention – but it was not unconstitutional on its face. The result insures that there will be further litigation as the law is implemented.
In Maples v. Thomas, 132 S.Ct. 912 (Jan. 18, 2012)(7-2), the Court reinstated a habeas petition filed by a death row inmate in Alabama. The petition had been dismissed by both lower courts on the ground that petitioner was precluded from seeking federal habeas relief by his failure to meet a filing deadline in state post-conviction proceedings. Writing for the majority, Justice Ginsburg held that petitioner had been effectively abandoned by the lawyers representing him in his post-conviction proceedings, and that this abandonment constituted adequate cause to excuse his non-compliance with the state’s procedural rules.
In Martinez v. Ryan, 132 S.Ct. 1309 (Mar. 20, 2012)(7-2), the Court declined to decide whether there is a right to competent counsel in state post-conviction proceedings. But, the Court held, in states where certain claims can only be raised for the first time in post-conviction proceedings, the failure to raise those claims due to the ineffective assistance of post-conviction counsel can be cause to excuse the procedural default that would otherwise bar federal habeas review. The issue arose in this case because Arizona does not allow challenges to the effectiveness of trial counsel to be raised on direct appeal; they can only be raised in state collateral proceedings.
Federal Criminal Law
In Reynolds v. U.S., 132 S.Ct. 975 (Jan. 23, 2012)(7-2), the Court held that sex offenders convicted before enactment of the federal Sex Offender Registration and Notification Act of 2006 (SORNA) were not subject to the Act’s registration requirements until the Attorney General exercised the authority granted by Congress to issue implementing guidelines, which happened seven months after the Act went into effect. Justice Breyer wrote the majority opinion.
In Dorsey v. U.S., 2012 WL 2344463 (June 21, 2012)(5-4), the Court considered the
retroactive effect of the Fair Sentencing Act, which reduced the disparity in federal sentencing between crack and powder cocaine from 100:1 to 18:1. Writing for the majority, Justice Breyer held that the new sentencing rules apply to all sentences imposed after the Act went into effect, even if the underlying conduct occurred before that date. Justice Breyer based his decision on “the language, structure, and basic objectives” of the Act, id. at ____, although the opinion notably omits any discussion of the racial disparities created by the old law, even though those racial disparities figured prominently in the congressional debates.
Federal Criminal Procedure
In Martel v. Clair, 132 S.Ct. 1276 (Mar. 5, 2012)(9-0), the Court unanimously held that a motion for substitution of counsel in a capital case under 18 U.S.C. § 3599 should be decided based on the “interests of justice,” as petitioner had argued in this habeas proceeding. But, writing for the Court, Justice Kagan then concluded that the district court’s denial of substitution did not offend the “interests of justice” on the particular facts of this case, although she noted that district courts addressing a substitution motion should normally do more of an inquiry into the reasons for the motion than the district court did in this case.
In Setser v. United States, 132 S.Ct. 1463 (Mar. 28, 2012)(5-3), the Court held that
federal sentencing laws allow a district judge to determine whether a federal sentence will run consecutively or concurrently with an anticipated state sentence. Writing for the majority, Justice Scalia rejected the alternative proposed in this case by both the defendant and the government – that the Bureau of Prisons is the appropriate decisionmaker when the state sentence is not actually imposed until after the defendant has been sentenced in federal court.