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April 29, 2009

Two SCOTUS losses for criminal defendants

As detailed in this SCOTUSblog post, the Supreme Court handed down two opinions this morning and they are both losses for defendants:

The Court has released the opinion in Kansas v. Ventris (07-1356) . The decision below, which held for the defendant, is reversed and remanded in a 7-2 opinion by Justice Scalia, available here.  Justice Stevens filed a dissenting opinion joined by Justice Ginsburg.

The Court has released the opinion in Dean v. United States (08-5274). The decision below, which held for the United States, is affirmed in a 7-2 opinion by Chief Justice Roberts, available here. Justice Stevens filed a dissenting opinion and Justice Breyer filed a dissenting opinion.

Dean involves a sentencing opinion dealing with a mandatory minimum sentencing provision that I will likely blog about later today.  Readers are welcome to get a running start in the comments.

April 29, 2009 at 10:36 AM | Permalink


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There are two problems with Ventris. 1. The Innocence Project found jailhouse snitches a common factor in wrongful convictions. All such "confessions" should be recorded. 2. If the government had planted a female jailhouse snitch with the woman-girlfriend, she would likely be the one that confessed. That is because the incentive to obtain a confession is so strong. Indeed, that facts of this case support this because Ventris and his girlfriend blamed each other for the shooting. In other words, both were willing to confess to a lesser part of the crime but had incentive to blame the other for the most serious charge. The snitch getting off of probation and no longer facing prison has the same incentive.

Maybe all the physical evidence pointed to Ventris and not the girlfriend so there was no probable cause to plant a snitch with the girlfriend, but if so, then why the need for a jailhouse snitch?

Posted by: George | Apr 29, 2009 12:31:12 PM

And the Constitution imposes special rules on "jailhouse snitches" where?

Posted by: federalist | Apr 29, 2009 1:22:29 PM

In the common law (upon which the Constitution rests) there is a long history of prohibiting unreliable evidence.

Posted by: Marc Shepherd | Apr 29, 2009 2:04:48 PM

The Constitution doesn't require it, federalist, but FWIW, the Texas Senate has passed a bill that's currently being considered in the House to require corroboration for jailhouse informants' testimony to secure a conviction. It wouldn't apply to impeachment testimony though, which was the issue in Ventris.

I agree such testimony is inherently unreliable. The best solution I've seen proposed for that would be a pretrial reliability hearing, as Alexandra Natapoff has suggested, just like the court might hold to decide whether to admit testimony from a compensated witness as an expert. We actually had legislation filed in Texas this spring (SB 260) that would have required such reliability hearings, but the idea didn't get nearly as far in the process as the corroboration bill.

Posted by: Gritsforbreakfast | Apr 29, 2009 2:15:31 PM

Stevens' dissent in Dean starts off with a lot of disingenuousness. The discharge of the gun was, in a sense, an accident. But it was an accident that happened in the course of an armed robbery.

Posted by: federalist | Apr 29, 2009 3:03:10 PM

Federalist, an argument could be built on the Privileges or Immunities Clause, Amendment XIV, Section 1, Clause 2 of the United States Constitution.

It is cruel and unusual punishment to convict an innocent person based on false testimony not to mention a violation of due process.

Posted by: George | Apr 29, 2009 5:10:18 PM

George and Marc: This is not sarcastic. I would appreciate a fuller legal analysis of your respective points. Unreliable evidence. And, an Eighth Amendment analysis of the false imprisonment of an innocent person.

You may believe that I favor the prosecution. I do not. I favor science and accuracy.

Although the defense efforts are expended in capital cases, those are rare and mostly irrelevant. Although efforts are expended in criminal trials, those are rare and mostly irrelevant.

The bulk of criminal justice takes place in the plea bargain. What is the rate of total innocence of any criminal violation in plea bargains? What fraction of criminal justice effort and cost goes to controlling innocent people? How big of a constitutional tort is that for the right lawyer?

If the answers are, huge, bigger, and humongous, shouldn't all judicial and prosecutorial immunities end, to deter these incompetents?

Posted by: Supremacy Claus | Apr 29, 2009 7:37:55 PM

Here's the problem: Scalia says there's no deterrance value to excluding as impeachment evidence statements taken in violation of the 6th A. And on that, he's wrong. If I'm the cops/prosecutors, I continue to do things like this - things tha I KNOW violate the defendant's constitutional rights - because I know that, at least, I can prevent the defendant from testifying or lock him into a story if he does. The government shouldn't have an incentive to violate people's rights. Now they do.

Posted by: Anon | Apr 29, 2009 8:13:05 PM

I am bummed about Dean b/c it was my case.

Posted by: Scott Forster | Apr 29, 2009 10:17:03 PM

In Dean, the Chief Justice says, "The felony-murder rule is a familiar example: If a defendant commits an unintended homicide while committing another felony, the defendant can be convicted of murder. See 18 U.S.C. s 1111."

Although this notion -- that section 1111 embodies a federal-murder rule -- is common, I can't understand how anyone could take this from the language of the statute:

Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.
Any other murder is murder in the second degree.

The statute defines murder in the first sentence, then says that a certain subset of murders (including those committed in the course of a felony) are first-degree murders, while all other murders are second-degree murders. This says nothing about unintended homicides being murders. If the killing lacked malice aforethought, it's neither first- nor second-degree murder.

Am I missing something?

Posted by: Anon321 | Apr 30, 2009 8:46:25 AM

What you are missing, Anon321, is that when Congress uses a common-law term with an established meaning, that term drags in everything it has been understood to mean, not limited to the literal meaning of the words. "Malice aforethought" includes the common-law doctrine of felony murder.

Title 18 is a rickety old thing, badly in need of overhaul, but Congress has other priorities, such as swine odor research.

Posted by: Kent Scheidegger | Apr 30, 2009 3:33:56 PM

I thought when Congress spoke it abrogated the common law. That's the point of having a code. If Congress wanted "malice aforethought" to mean "unintentional killing," shouldn't Congress statutorily define malice aforethought that way?

Come to think of it, doesn't the fact that the killing was unintentional mean that there was no malice or aforethought?

Posted by: Anon | Apr 30, 2009 4:38:54 PM

I agree that when Congress codifies a common-law crime, it implicitly includes the elements of the crime at common law, unless it clearly states otherwise. But I'm not sure about your assertion that the reference to malice aforethought automatically includes felony murder. Arguably, a killing committed during the commission of a felony can serve as a substitute for malice aforethought, or can impute malice aforethought where it doesn't otherwise exist. (But see 57 Stan. L. Rev. 59 (arguing that conventional wisdom about the common-law origins of the felony murder rule is largely a myth)) But are you saying that any statutory definition of murder as the unlawful killing of a human being with malice aforethought automatically and necessarily includes felony murder? I'm not sure that follows. But I take it that it's only the use of the term "malice aforethought," and not anything else in section 1111 that supposedly codifies the felony murder rule, right?

Section 1111 just seems to embody the felony-murder doctrine to the extent that it turns a murder committed during the course of a felony into a first-degree murder. It doesn't turn a killing that's not committed with malice aforethought into a murder. I take it that your argument is that malice aforethought is necessarily satisfied when the killing is committed in the course of a felony. But how clear is that from statutory and case law?

Posted by: Anon321 | Apr 30, 2009 5:32:31 PM

It's clear from the case law. Whether the statute would necessarily have to be interpreted that way is a debate I don't want to get into.

Posted by: Kent Scheidegger | Apr 30, 2009 6:43:19 PM

Legality was established in Hudson, 1812. How come the dumbass lawyer teaches, studies, and discusses common law crime?

"Dumbass" is a term of art. It refers to someone with an IQ of 300 who is mentally crippled by a law education.

Posted by: Supremacy Claus | Apr 30, 2009 9:26:25 PM

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