June 25, 2009
SCOTUS hands down last two criminal justice cases of the Term
Though not dealing directly with sentencing issues, the Supreme Court issued its final two notable criminal justice decisions this morning. Here is the basics thanks to this post at How Appealing:
Today's third opinion issued in Safford United School Dist. #1 v. Redding, No. 08-479. Justice Souter delivered the opinion of the Court, in which the Chief Justice and Justices Scalia, Kennedy, Breyer, and Alito joined in full, and in which Justices Stevens and Ginsburg joined in large part. Justice Stevens filed an opinion concurring in part and dissenting in part, in which Justice Ginsburg joined. Justice Ginsburg also filed an opinion concurring in part and dissenting in part. And Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part. You can access the opinion at this link and the oral argument transcript at this link.
The fourth and final decision issued today came in Melendez-Diaz v. Massachusetts, No. 07-591. The unusual line-up of Justices in this 5-4 ruling is as follows. Justice Scalia delivered the opinion of the Court, in which Justices Stevens, Souter, Thomas, and Ginsburg joined. Justice Thomas also issued a concurring opinion. And Justice Kennedy issued a dissenting opinion, in which the Chief Justice and Justices Breyer and Alito joined. You can access the opinion at this link and the oral argument transcript at this link.
I will be out of the office most of today, but I hope to be able to comment on both these rulings before the sun sets.
June 25, 2009 at 10:39 AM | Permalink
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Melendez-Diaz- this is why the Sotamayor nomination is so important. Although Roberts has bought a ticket to Aprrendi-land, he always joins the dissenters in other cases that split originalists and pragmatists, e.g. Arizona v. Gant. I have little doubt that Sotamayor will join the pragmatists here, and Souter's departure will be sorely missed (or welcomed if you're Kent Scheidegger).
Posted by: Jacob Berlove | Jun 25, 2009 11:46:49 AM
As much as I dont like the result in Melendez-Diaz, and I really don't like it, I don't think Scalia is wrong.
Posted by: federalist | Jun 25, 2009 12:07:39 PM
Redding--Absolutely ludicrous. Despite eight Justices (Thomas dissenting--who would have guessed) finding that the school official "must have been aware of the nature and limited threat of the specific drugs he was searching for," and that he could not "have suspected that Savana was hiding common painkillers in her underwear," the school officials still were entitled to qualified immunity? This is another symptom of the apparent common-sense deficiency infecting our Supreme Court (which, I hate to say, seems largely the product of the unidimensional characteristics of those selected for the post). I'm sorry, but it doesn't take a constitutional scholar to know that the search in this case was illegal--along with a lot of other critical words I could use. At least this kind of malarkey won't fly in the future.
Columbine occurred while I was in high school. Since then I have noticed a spate of ludicrous "zero-tolerance" policies that equate possession of cocaine with over-the-counter ibuprofen, and re-enacting Mortal Kombat scenes on the playground with planning a massacre. Schools undoubtedly confront many challenges today in maintaining safety on campuses, but there has to be a point where irrational fear does not justify an unreasonable policy or decision, even if the Supreme Court hasn't explicitly said so.
Posted by: Res ipsa | Jun 25, 2009 12:17:31 PM
"As much as I dont like the result in Melendez-Diaz, and I really don't like it, I don't think Scalia is wrong."
If Scalia were not in the majority, your opinion would change. Stop trying to act as though you're principled.
Posted by: Jay | Jun 25, 2009 12:18:26 PM
At first glance, it is difficult to see whether Redding is a broad or narrow ruling. Some of the language about the serious harms of strip searches to adolescents indicates that it's broad. Other language, suggesting that the 'harmlessness' of Ibuprofen is what drove the decision, indicates that it's more narrow. I guess we'll have to wait for the case where the suspected drug is marijuana in order to find out.
Posted by: Pendulum | Jun 25, 2009 12:39:00 PM
Your hedging is truly Clintonian; I commend you, sir. You "don't believe Scalia is wrong?" Are you saying that you believe that Scalia is right? Are Roberts, Kennedy, Breyer and Alito wrong? And if you think the majority drew the correct constitutional conclusion, why on Earth don't you like the result? How can you not like a result that involves striking a constitutionally infirm conviction, and reinforcing a foundational American principle?
Posted by: Pendulum | Jun 25, 2009 12:46:58 PM
Jacob, I entirely agree with you. My instinct (and it's just that) tells me Sotamayor will be a problem for the defense bar.
Posted by: DEJ | Jun 25, 2009 1:04:59 PM
"My instinct (and it's just that) tells me Sotamayor will be a problem for the defense bar."
The obvious counter-example would be Earl Warren, who was both a DA and AG for California and wildly popular as an elected official who was nominated by both parties.
The major difference of course is that Earl Warren had no previous experience as a judge at any level.
Posted by: . | Jun 25, 2009 1:20:32 PM
Scalia is right, in my opinion. From a policy perspective, I am not wild about the decision. I think though that the Confrontation Clause requires this result, and I really don't think it's close. IMHO, the hearsay exceptions don't get the job done. As for the parade of horribles, well, I'm not sure that the Sixth Amendment contemplated exceptions because of the difficulty of producing witnesses on a macro scale.
Posted by: federalist | Jun 25, 2009 1:20:41 PM
Federalist, you're "not sure" that the Founders intended for the Bill of Rights to apply even when it was inconvenient for the government? Not sure?
I don't even know what to say to that.
Posted by: CN | Jun 25, 2009 1:24:15 PM
Even worse about QI, what about the next case where only the bra is searched? QI is far too dependant upon exact circumstances, unless the exact same situation has arisen before the courts will invoke it. And then they'll start looking for artificial differences to distinuish on.
Posted by: Soronel Haetir | Jun 25, 2009 1:39:28 PM
CN, i think you read in too much.
Posted by: federalist | Jun 25, 2009 2:03:48 PM
federalist, you say "and I really don't like it." Why? It seems like a very easy holding to get around: just have the forensic analyst testify. Simple as that. If you agree with the holding, and the holding is easy to comply with, what's there to really dislike?
Posted by: DEJ | Jun 25, 2009 2:24:04 PM
DEJ, because it makes the logistics of trials that much more difficult, it will make lab tests more expensive etc. etc. Basically, it gives defense attorneys the ability to jack up costs. We've seen that in the DP arena.
That said, i don't see how the lab tech isnt a "witness" in the constitutional sense.
Posted by: federalist | Jun 25, 2009 2:30:02 PM
"DEJ, because it makes the logistics of trials that much more difficult, it will make lab tests more expensive etc. etc. Basically, it gives defense attorneys the ability to jack up costs. We've seen that in the DP arena."
And there goes any shred of credibility in federalist's argument. He'd prefer we be like Iran and just bill the guy's family for the bullet.
Posted by: . | Jun 25, 2009 2:50:51 PM
C'mon, Federalist, I dare you to say it without using a double negative: "The lab tech IS a witness in the constitutional sense!"
Loud and proud: "The Sixth Amendment does NOT contemplate exceptions because of the difficulty of producing witnesses on a macro scale!" Yay for civil rights!
Posted by: CN | Jun 25, 2009 2:56:28 PM
Since Scalia is a formalist, he doesn't care whether his ruling makes the government's job more difficult. The text says what it says, and it is not meant to be ignored at the prosecution's convenience.
Notwithstanding that, he goes on to explain that this won't really increase the cost of prosecution to any significant degree. There are many jurisdictions that have this rule already, and the "parade of horribles" simply hasn't materialized. Defense attorneys won't routinely try to jack up the costs, because it's not in their interest to force someone to appear against their client, unless they have an angle to rebut the testimony.
Posted by: Marc Shepherd | Jun 25, 2009 3:31:02 PM
perhaps you are right, Marc, we shall see, won't we?
Posted by: federalist | Jun 25, 2009 3:46:47 PM
Marc. The idea that Scalia is a formalist is laughable. But I certainly agree with the result here. It's the correct decision, regardless of the costs.
Posted by: Daniel | Jun 25, 2009 3:50:22 PM
Jay, STFU about federalist, you unprincipled prick.
Posted by: jaysucks | Jun 25, 2009 4:17:57 PM
I have to love the lawyer dirtbags. The vile lawyer has the school jumping to avoid ruinous litigation, and then condemns the schools for jumping. All Zero Tolerance, all PC is case.
Posted by: Supremacy Claus | Jun 25, 2009 5:17:58 PM
Marc, I agree. The majority effectively responds to the concern about court-appearance and costs in Subsection F of the opition and also footnote 10. "These assumptions are wildly unrealistic, and, as discussed below, the figures they produce do not reflect what has in fact occurred in those jurisdictions that havealready adopted the rule we announce today."
Posted by: DEJ | Jun 25, 2009 5:30:54 PM
Kennedy's dissent in Melendez-Diaz was ridiculously over the top. In Texas we've operated since 2005 requiring confrontation for lab techs and our system does BIG volume. If we can handle it, so can everybody else. Texas uses the "notice and demand" method that Scalia said remains unaffected by the ruling. According to the relevant statute (Texas CCP 38.41), a "certificate of analysis" similar to that in the Melendez case "is not admissible ... if, not later than the 10th day before the trial begins, the opposing party files a written objection to the use of the certificate with the clerk of the court and provides a copy of the objection by fax, hand delivery, or certified mail, return receipt requested, to the offering party."
Posted by: Gritsforbreakfast | Jun 25, 2009 6:34:19 PM
If you had asked me to guess what the law was in Melendez-Diaz v. Massachusetts before looking at precedents, I would have believed that it would have been in line with the court's holding. Police incident reports have long been held to be testimonial in character and the issue is quite similar. In practice, however, I think that lots of Melendez-Diaz violations will probably be viewed as harmless error on appeal unless defense counsel not only objects, but also preserves that objection with an offer of proof regarding what would have been asked on cross-examination, which many defense counsel are probably not up to the task of making (they went to law school because they didn't want to study chemistry).
Safford is puzzling, because it is so fact ridden and equivocal in what it holds (bag search O.K., strip search not O.K. but might have been with better probable cause and a more serious threat) that it doesn't seem to fit the usual cert worthy, law making case profile, yet due to the resolution of the qualified immunity issue, isn't likely to be very important in error correction either. Were four justices hoping for a major doctrinal holding but not able to secure the majority they neeed? Is the message that the 4th Amendment is a facts and circumstances question, rather than a clean cut set of doctrines? Is this in some way a statement about juries rather than judges making decisions in close cases?
Posted by: ohwilleke | Jun 25, 2009 7:58:45 PM
Thank a lawyer.
Posted by: Supremacy Claus | Jun 25, 2009 11:59:40 PM
Ohwilleke, you made an excellent point on Safford, one I just quoted in this post on Grits.
Posted by: Gritsforbreakfast | Jun 26, 2009 9:30:41 AM
Is Safford really all that puzzling? I think it sends just the right message--in America, we don't do strip searches of students for OTC drugs on the say-so of another student. Kinda in the no-brainer category.
Posted by: federalist | Jun 26, 2009 11:43:42 AM
ohwilleke: "Is the message that the 4th Amendment is a facts and circumstances question, rather than a clean cut set of doctrines?"
I assumed it always was a facts and circumstances question. The amendment itself only allows "reasonable" searches, which by its very nature means "whatever judges determine to be reasonable." In this sense, the opinion means nothing new.
What I fear is that the opinion has unduly narrowed when qualified immunity doesn't apply in the school setting. As I understand it, even if the Court, using an unaltered, clearly worded precedent that is and remains well-established doctrine, finds illegal a search which common sense tells us is patently unreasonable, the school still did not act illegally enough to be on the hook. Talk about absolutely no incentive to be reasonable in policies and actions...and for parents, welcome to continued zero-tolerance policies that can get your kid suspended for taking a tylenol into school to quell his or her headache after third period. (I wish I were kidding about this, too, but it's already happened a few times.)
It's true that this case may represent a narrow holding from a Supreme Court fourth amendment doctrinal point of view. But my biggest concern is how the circuits are going to apply it. The Sixth Circuit in particular seems to go out of its way to protect unreasonable school decisions so long as the school mentions "drugs." I foresee this broadening of QI as creating an excuse for the circuits to immunize school officials for other ridiculous searches so long as the circumstances are not factually identical to a Supreme Court case (enter the bra search only, as Soronel aptly mentioned).
Posted by: Res ipsa | Jun 26, 2009 12:23:28 PM