Five “Outside the Box” Supreme Court Nominees

I know that in my last post I specifically called for a former public defender for the Supreme Court. But since there is no chance in that happening, I decided to put out five specific names, none of whom (to my knowledge) are former public defenders. I believe that everyone below is qualified, though I admit that they too have an icicle's chance in hell of nomination.

RALPH NADER-Legendary consumer rights lawyer, also –ran

Pros: Would be loads of fun in oral argument, would immediately start national conversation on consumer rights, would provide intellectual counterweight to Scalia and Thomas.

Cons: Abrasive personality; is a wild card in every sense. Filibuster guaranteed.

SPENCER OVERTON- Author of "Stealing Democracy," founder of Demos, Professor at GW Law School.

Pros: Attuned to civil rights, reliable liberal, charming personality.

Cons: No judging experience; could be viewed as ideologue. Filibuster guaranteed.

NANCY GERTNER-Serves on Massachusetts Federal District Court, former defense lawyer

Pros: Known for thoughtful eloquent opinions, high intellectual caliber, reliable liberal, respected by colleagues.

Cons: Outspoken; controversial and headline-grabbing. Filibuster guaranteed.

MARGARET MARSHALL-Chief Justice, Massachusetts Supreme Judicial Court, authored Goodridge same-sex marriage opinion.

Pros: Unsurpassed temperament, would be celebrated by GLBT community, has perspective of someone who grew up in apartheid South Africa, nomination process would show true colors of gay-bashers in US Senate.

Cons: Would create stir over Massachusetts law's generosity to criminal defendants—could make my job harder. Filibuster guaranteed.

JERRY BROWN- California Attorney General, also-ran, Former Governor and Oakland mayor.

Pros: Would become "Justice Moonbeam," high familiarity with state and local perspective on federalism issues, would raise profile of environment issue.

Cons: Not a team player; wants to run against Gov. Schwarzenegger. Filibuster guaranteed.

Former Public Defender for Supreme Court Justice

I'm calling on President Obama to appoint a former public defender to the United States Supreme Court. With rumors of Justice Stevens's retirement abound, now is as good a time as ever to make my case.

First, I want to address the naïveté of this proposal. I understand that sadly, we are in a political climate that makes such an appointment basically impossible. Democrats and Republicans alike continue to subscribe to the view that cheap platitudes about being "tough" on crime and drugs will resonate more with voters than courageous leadership on criminal justice reform. Though I tend to think that voters respect courageous moves (even if they disagree with them) more than pandering, conventional political wisdom suggests the opposite. We routinely see progressive politicians shift toward the center on criminal justice matters. President Clinton did it, and now President Obama is doing it. So I hope I've made it absolutely clear at the outset that I understand the real politic of this proposal.

Yet real politic or not, the "tough on crime" dogma is rooted more in Americans' emotional/historical attachment to wild west "hang 'em high" justice, than actual facts regarding the judging tendencies of former public defenders. I have heard of no evidence—and I doubt any exists—that former public defender judges side with defendants more often than former prosecutor judges side with prosecutors. Nobody ever questions whether a former prosecutor will be biased. Nevertheless, Democrats and Republicans seem to shy away from appointing any jurist who could be remotely construed as "soft on crime," no matter how qualified the individual. If I only had a dime for every time Democratic senators Patrick Leahey, Arlen Spector, and Chuck Schumer touted their status as former prosecutors.

At least, however, these Democrats favor meting out justice to corporate misfeasors as well. It is ironic that the most hard-core law and order politicians in the United States Senate—southern Republicans—have no problem appointing those who defend polluters, makers of unsafe products, rip-off loan companies, tobacco manufacturers and even foreign governments. I guess that it is alright to defend those who cause harm to others, so long as the attorney is at a white-shoe law firm. Chief Justice Roberts is the best example—An attorney who worked to defend corporations against individuals, and has yet to side against a corporation as a Supreme Court justice. "How dare you suggest that his former clients reflect his judicial philosophy," bellowed his Republican defenders when some questioned his commitment to individual rights during the confirmation hearings. If only theses politicians would hold a former public defender to the same standard.

The truth is that former public defender judges are just as capable of locking up bad guys, and may even be better equipped to do so than their former prosecutor counterparts. They can smell out a guilty defendant or a frivolous defense argument better than just about anyone. They know every procedural trick in the book because they have tried to use them at one time or another. Unlike prosecutors, they have to actually visit jails and converse with sex offenders, murderers and neo Nazis on a regular basis. They are under no illusions about the fact that there are lots of bad people who do bad things. As for their sympathy for the victims of crimes, public defenders grasp what far too few police and prosecutors understand: Most victims of crime come from the very same segments of society that defendants do. Contact with defendants from poor and minority populations means greater understanding of the world in which victims live.

Does anyone seriously think that President Obama would have opposed the idea of a public defender as a Supreme Court justice back when he was a state senator? Here is a perfect opportunity for him to reassert himself as a principled leader who doesn't always follow the polling and do what's popular…he may even find that the public will reward an act of courage. Nobody thinks that President Obama is Mr. Law and Order, so he shouldn't pretend to be. What better way to show some balls than to appoint a former public defender to the Supreme Court.

 

Crazy Cat Ladies Beware

The smell of rotting carcasses creates an exigency that permits a warrantless entry into a home. Commonwealth v. Erickson, 74 Mass.App.Ct. 172 (2009)

When police responded to neighbor's complaints of a barking dog, they came upon the defendant's home and found a disgusting odor. After entering, "officers opened the refrigerator and the kitchen cabinets and found forty-nine to fifty-one animal carcasses and containers holding what appeared to be animal parts or organs." Id. at 174. The officer reasonably believed that the apartment could have contained a human body, justifying the entry and search.

Fire Snooping Cops

Police officers who have been improperly snooping through the arrest records of high profile private citizens should be fired. If they are not, Attorney General Coakley should conduct an open and transparent investigation, and consider prosecutions for violations of various privacy statutes.

A recent audit determined that Massachusetts police officers were abusing the criminal history system to run checks on local celebrities. According to NPR, Tom Brady topped the list of searches, with over 900 checks. Not only is this a profound waste of taxpayer time, but it is also unprofessional and possibly illegal. Though this may sound trivial, it is illustrative of a culture of power abuse among many Massachusetts police officers.

To be fair, most police officers are professional and do a reasonably good job. Yet even among good cops there is a code of silence, preventing the public from holding accountable those who abuse power.

I have had many conversations with prosecutors about situations in which police officers have inappropriately intervened in a case on behalf of a family member or friend. While most prosecutors would not admit to abiding by such requests, they are not in a good position to refuse. Once a prosecutor gets a reputation among police officers for not being "friendly," suddenly the entire department stops returning their calls. The officers don't show up for that Assistant District Attorney's cases, and the prosecutor cannot perform his job properly.

Just like judges and prosecutors, police officers are entrusted with sensitive information, which the public expects them to handle responsibly. Accordingly, they ought to be held to a higher standard than private citizens. While firing them for what seems like a relatively innocent mistake borne from simple curiosity may seem draconian, failing to do so would be a tacit acceptance of misconduct. It is time that the police community be put on notice.

It is never politically popular to take on the police and police unions. The police community knows this, and uses it to leverage benefits that no other public servants enjoy. (Think $80/hour to do nothing at a construction site.)However, the public has every right to expect that officers charged with enforcing the law will abide by it. If this message does not get through to the upper echelons of the barracks and precincts, Attorney General Coakley should step in.

School Strip Search

Today the United States Supreme court will hear the school strip search case, Redding v. Safford Unified School Dist. No. 1, 531 F.3d 1071 (9th Cir. 2008). If the Supreme Court sides with the school district, it will open the door to consequence-free human rights violations by teachers and administrators nationwide.

This is not rocket science, folks. The question is simple: Does uncorroborated suspicion of Ibuprofen possession justify school officials’ strip searching a 13 year-old girl? Reasonableness is the touchstone of the Fourth Amendment. This is unreasonable. Duh.

That some would attempt to justify this intrusion in the name of discipline is outrageous. If teachers are to be given a free hand here, what’s to stop them from conducting body cavity searches? The virulent anti-drug crusaders in America—those who support the school’s actions—are so hot to fight drugs as a culture war issue, that they have lost all perspective on what it means to protect children.

If you care about protecting children from sexual abuse, have no illusions about what the cultural right-wing of this country, and their lawyer champions like Ken Lay and Ted Olson believe: They think that keeping children drug-free is more important than maintaining a child’s dignity. They think that school officials should be able to force children to expose their genitals, based on the flimsiest level of drug suspicion.

This is beyond stupid. It is sick. Calling this a privacy debate underplays the seriousness of what is at stake. This is about whether the Supreme Court will condone human rights violations in public schools.

Drug activity does not equal “armed and dangerous” SJC says

A new case from the Supreme Judicial court was a major victory for defendants arrested as part of street level drug transactions. It basically says that just because a police officer witnesses what appears to be a drug transaction, and is justified in stopping the defendant, this does not necessarily mean that the cop has a right to pat-frisk the suspect for weapons. There must be separate indications that the suspect is armed and dangerous. Commonwealth v. Paul Gomes, 453 Mass. 506 (2009)

I offer kudos to the Supreme Judicial Court for recognizing that guns and drugs do not always go together. In fact, most drug dealers are smart enough to know that firearms charges carry a mandatory one-year sentence, so usually they leave their guns at home. Just because cops and prosecutors claim that criminals behave a certain way, it doesn't make it so.

Ted Stevens Case

 

While Ted Stevens may be a scum bag, AG Holder did the right thing when he dropped charges against him due to prosecutorial misconduct.

Ted "the internet is a series of tubes" Stevens was a US Senator between 1968 and 2009. He was charged with corruption last year, which many believe is the reason for his defeat in the 2008 election. He is known for close ties to the energy industry and his ability to win pork barrel projects for his state. When asked whether he would assent to removing the "Bridge to Nowhere" from an appropriations bill, he hatefully snarled "No!" as if he had just been asked to burn an American flag. Long story short, the man was a pathetic excuse for a public servant, and his shameless style of self-dealing (criminal or not) represents everything nauseating about politics.

Yet his legal proceedings have come under scrutiny, with the presiding judge outraged of prosecutorial misconduct. Prosecutors have a duty to disclose all potentially exculpatory evidence (evidence favorable to the defendant) in criminal cases. For example, if a prosecutor learns that the victim of an alleged crime has a history of making false accusations, this information must be turned over to the defense. Strong evidence suggests that in this case the Assistant United States Attorneys in the Public Corruption Division deliberately withheld such exculpatory information. Accordingly, AG Holder ordered charges dropped, and is now considering criminal charges against the prosecutors.

Regardless of how scummy Stevens is, the principle at stake is far more important than any single case. Unlike criminal defense lawyers, prosecutors are not supposed to exercise "zealos advocacy." Rather, a prosecutor's role is best described as "doing justice." Some have even called it a "quasi-judicial" role. What this means is that a good prosecutor does not always win. Good prosecutors drop bad cases, and voluntarily disadvantage themselves at trial in the interest of fairness.

If the Stevens prosecutors forgot themselves, and got caught up in their drive to win a high profile case, they deserve to (1) lose the case, (2) be fired, and (3) possibly face criminal charges. Since prosecutors enjoy full immunity from civil suit for their actions as prosecutors (Stupid rule! They should only have qualified immunity like cops.), perhaps this public beheading by AG Holder will remind them of their proper role.

Let Judges Decide

The legislature should revise the suspended sentence statute (G. L. c. 279, § 3) to give judges greater discretion in resolving probationary matters.

When a defendant violates probation, and the alleged violation took place when the client was free on a suspended sentence, judges lack the discretion to impose common-sense resolutions. The case of Commonwealth v. Holmgren, 421 Mass. 224 (1995) points out that in these cases, the legislature drafted language that eliminates the judge's ability to impose sentences other than the original suspended sentence.

Every probation violation hearing has two questions: (1) the factual issue of whether the violation took place, and (2) if so, should probation be revoked. see Dist. Ct. Rules for Prob. Viol Proc. In cases of "straight" probation, when a judge revokes probation, he is has wide discretion about where to go. He may extend the probation, leave it the same, or impose additional conditions. However, in cases where the probation was part of a suspended sentence, once the probation has been revoked, the Judge has no choice but to impose the original suspended sentence.

For example, let's say that someone is on probation as part of a 1 year suspended sentence for drug possession. Let's say that he fails a mandatory drug screening during the probation period. Once the violation has been proven, the hearing judge has only 2 choices: (a) Not revoke the probation (doing nothing), leaving the probation as it was, or (b) impose the full 1 year sentence. This is ridiculous. If he chooses option (a), then he basically sends the message, "Yes, you screwed up, but we're going to let you get away with it." If he chooses option (b), then he is sending a guy to jail for a full year just for failing a drug test. Both options seem extreme to me.

Judges deserve a third option. If a judge decides to revoke probation, he or she should be able to adjust the sentence, impose additional conditions (like detox), or find other solutions based on a defendant's individual situation. If the legislature were to overturn the statute behind the Holmgren decision, adopting instead the more flexible federal rule, judges would be given that freedom. Given the overcrowding of the jails, this would go a long way in making sure that we only incarcerate people who belong in jail.

With the current fiscal crisis stressing all parts of state government, we cannot afford to send people to jail unnecessarily. The legislature should really do something about this.

On Mumia

While many say, "Free Mumia," I argue, "Spare Mumia's Life."

Mumia Abu Jamal is a former Black Panther who was convicted of the 1983 slaying of Philadelphia police officer Daniel Faulkner. "Free Mumia" has been the rallying cry for left wing and anti-death penalty activists who think that his trial was unfair. The U.S. Supreme Court has just rejected Mumia's application for a new trial. His death sentence has been vacated, but it remains to be seen whether the U.S. Supreme court will reinstate it.

Frankly, I am not an expert on the case. I do, however, know that it raises high emotions on all sides. To many urban minorities, he is a symbol of a racist justice system. They think that he was essentially framed and convicted by racist cops, prosecutors, and jurors. To many police officers, he is simply a cold-blooded cop killer with a knack for effective PR. They see his cause as an example of left wing disdain for law and order. Indeed he has written a very eloquent book where he indicts the the justice system, the death penalty in particular.

While I won't get into the details of his case, a cursory view leads me to several conclusions:

1) He probably is guilty
2) He received an unfair trial
3) He should NOT be executed

First, I say he is guilty because there is strong evidence that he was at the scene of the crime, and that the murder weapon belonged to him. It is true that some of the witnesses against him have recanted. Even his strongest supporters, however, when pressed on the factual question of his guilt, try to shift the conversation to the fairness of the trial. I personally cannot be so dismissive of this factual issue. Certainly, I don't think that we should "free" him without a Not Guilty verdict in a new trial. In some ways, the "Free Mumia" movement has done him a disservice, because it has focused public attention on the factual issue of his guilt, rather than the more persuasive argument that he deserves a new trial. Indeed, demanding his immediate freedom makes it easy to pigeonhole his supporeters as left wing whackos, unconcerned about winning the fair trial they claim he was denied.

What frustrates me most about the "Free Mumia" crowd's lack of focus, is the fact that there was such a strong case for a new trial. The 3rd Circuit Court of Appeals has already ruled that the jury was wrongly instructed. This is why they vacated his death sentence. There is also the issue of recanting witnesses, which ought to be investigated further. Finally, there is the fact that the jury consisted of 10 whites and only 2 blacks. This in itself makes the trial's fairness highly suspect. But since the Supreme Court has already ruled that he will not receive a new trial, the only issue remaining is whether he should be executed.

I admit that I am generally biased against the death penalty. But even if I favored it as a general policy matter, I would not support it in this case. The bottom line is the irreversible nature of a death sentence. Unlike other forms of punishment, if and when new evidence arises following execution, you cannot simply set the person free and compensate him for his troubles. This means that if the death penalty is to be applied at all, the process leading to it should be virtually flawless and the question of guilt indisputable. This case fails in both regards.

I disagree with calls to "free" Mumia, and feel that he would be in far better shape today had the rallying cry been "New Trial for Mumia." But now that a new trial is out of the question, freeing him is as well (absent compelling new evidence). Given this reality, activists should change their rallying cry to "Spare Mumia's Life." As for the Supreme Court, they should consider the flawed nature of the trial and deny Pennsylvania's request to reinstate the death sentence.

Object during closing?

A Massachusetts Appeals Court decision, which was just denied further appellate review, Commonwealth v. Rosa, 73 Mass. App. Ct. 540 (2009), reminds us that sometimes criminal defense attorneys need to object during the prosecution's closing argument.

Traditionally, trial lawyers refrain from objecting during their opponent's closing argument. I can think of two reasons for this. First, I suspect that this tendency is a holdover from the days when lawyers were considered just short of nobility. Flip through just about any Dickens book, and you will discover a culture in which attorneys were more concerned about professional courtliness than preserving their clients' rights. The second reason is that closing arguments are simply not evidence. Since the closing argument does not appear on the record as actual evidence, lawyers often feel that there is no point in bothering with an objection.

This case, however, points to a situation where several errors were made by the prosecutor without objection from defense counsel. Though the court did not find the "substantial likelyhood of miscarriage of justice" required for a new trial, they did (in dicta) identify some categories of objectionable prosecutorial statements.

1. Repeated references to the victim's popular profession, unduly playing on the sympathies of the jurors: In this case, the prosecutor repeated several times that the victim of an Assault and Battery on a Public Employee was a firefighter. He made nineteen references to this fact. The court ruled that this was improper. Id. at 545
   

   
   

2. Repeated references to the severity of the victim's injuries, unduly playing on the sympathies of the jury: the court said,
   

   
   

   "The prosecutor's repeated reference to the seriousness of the victim's injuries also went too far in appealing to juror sympathy. His closing included statements that the defendant 'crushed Lieutenant Loughlin into Engine No. 8'; 'mauled . . . and drove over' the victim; 'crushed this firefighter's pelvis'; 'drove into Lieutenant Loughlin with so much power he pinned him between two vehicles [so] that buttons from his uniform and his clothing were wedged into that vehicle. Then [the defendant] leaves the scene leaving behind a firefighter lying on the cold, wet street. . . .' He also said, 'This firefighter ended up with injuries to his arms, to his wrist, to his legs, to his knees, to his pelvis. It took him over a year to walk again because this defendant slammed into him and then tried to flee the scene and he did flee the scene,' and '[Y]ou have to imagine how much damage was done to that Lieutenant's body as that SUV tore into him.'" Id.
   

   
   

3. Statements regarding the reliability of a particular photo array identification technique: The prosecutor in this case claimed that the photo array technique applied was superior to other identification techniques. He never offered evidence to that effect. The court ruled that this was improper. Id. at 546-548
   

No doubt other cases in The Commonwealth offer additional categories of objectionable closing argument statements. This case, however, is a reminder that the days of Dickens are gone. If you're defending the criminally accused, don't give the prosecutor a pass when he crosses the line.

Should I Confess at my College Disciplinary Hearing?

Last week I went to a Boston Bar Association conference on representing college and university students at disciplinary hearings. In attendance was one of the BU deans, and several lawyers experienced in this area.

The most challenging part about representing a college/university student is the tension between the school’s desire for contrition, and the criminal justice consequences of admitting to an illegal act. Typically criminal defense lawyers will advise against admitting anything, if the statement is admissible in court. Admissions at disciplinary hearings will usually fall into that category, so lawyers often reflexively advise silence. Given how much students invest in their education these days, I'm not sure playing it ultra-safe is the best approach.

So what would I do if I were representing a student who just got a DUI on campus? First, I would explain to the client the risk of admitting to a crime at the disciplinary hearing. Then I would seek assurances from the school that they will resist any attempts by prosecutors to use the disciplinary hearing transcript to prove guilt at trial. This might mean a quick call to the school’s chief counsel. Next I would have the client sign a waiver indicating he understood the risk of confessing at the school hearing. Finally, I would advise him to express remorse, and tell the school’s hearing officer the truth. Unlike in a courtroom, the student taking responsibility for his own actions will help him far more than anything a lawyer could say.

In reality (as opposed to theory), most prosecutors would not seek to admit evidence from the school’s hearing, unless it was a very serious crime such as rape, murder, or possibly aggravated assault and battery. Frankly, most district court prosecutors simply don’t have the time to chase down university transcripts, which may or may not contain useful information. This is especially true when the charge is fairly minor. The BU dean said that he has never received or even heard of such a request from a prosecutor.

At the end of the day, the student has much to gain from taking responsibility (and possibly admitting guilt) at the school hearing. It may allow him to avoid suspension, retain student housing, or minimize impact on his student record. No doubt there is a risk of the confession coming back to bite the student later in court. Yet in a misdemeanor case the chances are relatively slim. If the client understands and signs off on the risk, I think that the school's desire for contrition makes it a worthwhile gamble.

Reasonable Suspicion?

A case argued earlier this month in the S.J.C., Commonwealth v. Johnson, SJC-10267, puts a spotlight on police departments' double standard of "reasonable suspicion." When Springfield Police officers approached a group of teenagers standing under a tree at 10AM, they asked Mr. Johnson to take his hands out of his pocket. A minute or two later--perhaps as a nervous tick--he returned his hands to his pocket. At that point he was pat-frisked, and was arrested for drug possession.
The only justification for the pat-frisk was a concern for officer safety. That is to say that the pat frisk was justified on the "reasonable suspicion" that Johnson was armed and dangerous. The suspicion of weapons was based on (1) being in a "high crime/high drug activity" neighborhood, and (2) Johnson putting his hands in his pockets.
Mr. Johnson and his four friends are African Americans. One has to wonder weather the frisk would have happened if it had been a group of white teenage girls in an affluent neighborhood. It raises the question: Shouldn't a uniform standard of "reasonable suspicion" apply to all Massachusetts citizens equally? Should the S.J.C. reevaluate the constitutionality of using "high crime/high drug activity neighborhood" as a factor in determining whether a pat frisk is justified?See video of the oral argument here: mms://192.138.214.175/archives/SJC_10267.wmv