Criminal defense

Say Goodby to the Exclusionary Rule?

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  Recently Professor Tim O’Neil of John Marshall Law School wrote…..”Be afraid. Be very afraid.”

He was writing about the impact that Justices’ Scalia, Thomas, Roberts and Alioto were having on criminal procedure.

The quartet were in the majority in two recent Supreme Court decisions that had placed the Fourth Amendment Exclusionary Rule firmly on the endangered species list. (See  Professor O’Neil’s, “Exclusionary Rule Hanging On By a Thread,” Feb. 13, 2009). In 2006, the Roberts Court refused to exclude evidence recovered in a search following the failure of the police to properly “knock and announce.” Hudson v. Michigan, 547 U.S. 586. Conceding that the search violated the Fourth Amendment, Justice Antonin Scalia’s majority opinion for a 5-4 court claimed that “Suppression of evidence … has always been our last resort, not our first impulse.” And so, for the first time since the Exclusionary Rule was incorporated against the states in 1961, the Supreme Court refused to exclude evidence where the Fourth Amendment violation was caused solely by improper police behavior. Last year the Roberts Court took a second poke at the Fourth Amendment pi?ata. In another 5-4 decision, the Court appeared to raise the bar of police misbehavior that would justify exclusion. Herring v. U.S., 129 S.Ct. 695 (2009). Chief Justice John Roberts for the majority wrote that exclusion of evidence only “serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.”

These decisions led Judge Richard A. Posner to opine that “[T]he exclusionary rule is bound some day to give way to [civil remedies].” U.S. v. Sims, 553 F.3d 580 (7th Cir. 2009).

DNA and Due Process

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In District Attorney’s Office v. Osborne the Supreme Court confronted novel and complex constitutional questions regarding the postconviction protections offered to potentially innocent convicts. Two decades after DNA testing exonerated the first inmate in the U.S. the Court heard its first claim by a convict seeking DNA testing that could prove innocence.  Despite language suggesting the Court would not “constitutionalize the issue” by announcing an unqualified freestanding right, Chief Justice Roberts’ majority opinion proceeded to carefully fashion an important, but qualified and derivative procedural due process right. While denying relief to Osborne for narrow factual and procedural reasons, the Court’s ruling swept more broadly. The Court held that states with post-conviction discovery rules, as almost all have enacted, may not arbitrarily deny access to post-conviction DNA testing, and then pointed to the generous provisions of the federal Innocence Protection Act as a model for an adequate statute. The Court also continued to assume that litigants may assert constitutional claims of actual innocence in habeas proceedings.

From Brandon L. Garrett (University of Virginia School of Law)  has posted DNA and Due Process (Fordham Law Review Vol. 78, 2010) on SSRN.

Mandatory Minimums

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Deborah Fleischaker, director of state legislative affairs for Families Against Mandatory Minimums, has this piece at Jurist:

[T]here is no evidence to suggest that repealing mandatory sentences would lead to an increase in crime. In fact, states that have significantly reformed mandatory minimums, as Michigan did in 1998 and 2003, have not experienced increasing levels of crime. More and more states – notably, both red and blue states – are employing proven alternatives, such as drug courts and risk-based sentencing policies, which are more effective and cost-efficient than lengthy, mandatory sentences, especially when dealing with non-violent drug offenders

Judicial Conflict?

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Clarence Thomas’ Wife Joins Tea Party

Virginia Thomas is no ordinary activist. In fact, she’s the wife of Supreme Court Justice Clarence Thomas and she has founded a Tea Party-linked group, which could stretch the court’s traditional sense of impartiality. Thomas’ new group is called Liberty Central Inc. It’s a nonprofit lobbying group set to issue score cards for Congress members during the November election. The group and work doesn’t violate ethical rules for judges, but it could potentially be grounds for conflict of interest for her husband. Liberty Central may be a nonpartisan group, but it leans toward conservative principles and its nonprofit title allows it to raise unlimited amounts of corporate money without disclosing its donors. The group is set to launch fully in May.

CRIMINALS TO STAY IN JAIL

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The Tavares Hunt case has cast a bright light on to the little-reported, yet frequent practice of the Chicago Police pulling prisoners out of jail for questioning solely at their discretion. The First District Appellate Court has put an end to the revolving door at the Cook County Jail, now mandating that all officers will have to go before a judge PRIOR to transporting the individual for questioning. It is hard to believe this practice was allowed for so long, as the constitution implications are obvious, as well as the fact that most of the inmates had lawyers who were purposely left unaware of the interrogations. No one is arguing against questioning inmates when necessary, but it is imperative that it is done by the letter of the law and in the light of day so that justice can be served without rights being infringed.