Excluding the Exclusionary Rule

A couple of weeks ago, the Supreme Court announced its decision in Herring v. United States, providing for limitations on the application of the Exclusionary Rule in cases of police negligence. The ruling is ill-conceived, but certainly not outrageous. However, in a few pieces of dicta in his opinion, Chief Justice John Roberts seems to let slip his true feelings about the Exclusionary Rule and the Fourth Amendment more broadly – feelings which could more reasonably be described as outrageous.

As always, we start with the facts. Bennie Herring had come to the Coffee County Sheriff’s Department to retrieve some personal items from his car which had been impounded. Investigator Mark Anderson was at the Department that day, and it seems that Anderson and Herring had something of a checkered past. Indeed, Herring had suggested to the District Attorney that Anderson was involved in the killing of a local teenager. So, let’s just say that these guys did not like each other. So, knowing that Herring was at the Department, Anderson asked the Coffee County warrant clerk to see if there were any outstanding warrants for Herring’s arrest. The clerk found none, so Anderson asked her to call the warrant clerk of neighboring Dale County, and alas, they found a warrant for Herring’s arrest. With this information, Anderson promptly arrested and searched Herring, finding some methamphetamine in his pocket and a pistol in his truck (which was illegal, given his status as a felon). Mere minutes after the arrest and search, Anderson received word from the warrant clerk that the warrant was invalid – it had been recalled five months earlier, but the computer database had not been updated (which apparently was the duty of a police official).

Naturally, Herring sought to invoke the Exclusionary Rule. Not so surprisingly, the magistrate judge in the Middle District of Alabama and the Eleventh Circuit would have none of that. And that brings us to our beloved Supreme Court.


Published in: on February 2, 2009 at 8:28 pm Comments Off on Excluding the Exclusionary Rule
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Coming and Going; the Going Part: Saucier Overruled

Yesterday, in Pearson v. Callahan, the Supreme Court overruled Saucier v. Katz. This is a really big deal. Section 1983 makes it a crime for anyone to violate the civil rights of another citizen ‘under color of law’. Given that expansive language (which is just as expansive as it sounds), and the availability of private damage awards, 1983 suits make up a significant proportion of the federal docket — over 40,000 per year as of 1999. The opposing principle to such a broad provision is that of ‘qualified immunity,’ under which the defendants in such cases (usually police and correctional officers) are not liable under section 1983 if at the time of the violation, it was not ‘clearly established’ that their conduct was unconstitutional. Under Saucier v. Katz, the courts were required to actually decide whether the conduct at issue was a violation of the plaintiff’s (ie. the criminal defendant’s) constitutional rights BEFORE the court decided whether or not the plaintiff was entitled to qualified immunity.

This two-step procedure, the Saucier Court reasoned, is necessary to support the Constitution’s ‘elaboration from case to case’ and to prevent constitutional stagnation. ‘The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer’s conduct was unlawful in the circumstances of the case.’

Naturally, courts didn’t want to do it; they would rather skip to the qualified immunity part by just assuming the conduct was unconstitutional. The problem is, when the standard is whether the unconstitutionality of the conduct was ‘clearly established,’ skipping the part of the decision that establishes it does not provide any guidance for police and correctional officials in the future (or any precedent on which to hold them accountable). That is what the Court in Saucier meant by “stagnation,” and why, under the Saucier “order of battle” rule, if a suit was brought, and the court thought the even if there had been a violation of the Fourth Amendment, the defendants were entitled to qualified immunity, it could not decline to decide the question of the constitutionality of what the police did before it completely dismissed the case. Today, that rule is overturned.


Published in: on January 22, 2009 at 10:18 am Comments Off on Coming and Going; the Going Part: Saucier Overruled

Confrontation in a Scientific Age

Fingerprints, DNA, CSI.  These terms are ubiquitous after the turn of the century and they are undeniable tools that the State and defendants alike can use to argue in criminal cases.  Behind the data lies a methodology and behind the numbers hides a face.  A decidedly modern question burns before the Supreme Court in the case of Melendez-Diaz v. Massachusetts, No. 07-591.  Does a defendant have the right to confront an actual witness when presented with forensic evidence in a criminal trial?

The Sixth Amendment of the Constitution states that the accused has the right “to be confronted with the witnesses against him.”  U.S. Const. Amend. VI.  The “confrontation clause” allows for a defendant to cross-examine witnesses to affirm or deny the validity of their testimony to the jury.  Massachusetts allows a certificate of analysis to stand in for testimony for the validity of the forensic results.  The Supreme Court will decide whether forensic evidence falls within the Sixth Amendment’s requirement of confrontation.

The underlying theory of the confrontation clause is that a defendant must be able to question the evidence presented to the jury to assess guilt or innocence.  A large component of the evidence presented in criminal trials is forensic evidence.  Defendants can use forensic evidence to obtain their freedom.  But the price of progress becomes obvious when society relies on this science without question.  Scientific methods can be limited, unreliable, or inexactChain of custody records can further muddle the validity of forensic results.  The Los Angeles Times has reported about conditions in the LAPD fingerprint lab that raise chain of custody issue as well as questions of sufficient funding and training for technicians.  All of these reasons together make a compelling argument that forensic evidence should not be exempt from the confrontation clause.


Published in: on November 19, 2008 at 12:14 am Comments Off on Confrontation in a Scientific Age

Fox News v. FCC: Indecent Restrictions on TV Profanity?

If a word describes something usually done in the bedroom or bathroom, then that word should only be used in private. That is the motto after which the Federal Communications Commission’s (FCC) rules regulating the use of profane language on broadcast television seem to be modeled. One cannot delve into the meaning and purpose of FCC regulations without first understanding the subtle, and arguably arbitrary differences between obscenity, indecency, and profanity. Most people probably view these three words as interchangeable. In the context of everyday life they are. Legally speaking, there are differences between the three words.

Obscenity is the worst of the three and is not protected by the First Amendment. Obscene material is defined as “that which would be categorized as lewd by the average person applying contemporary community standards.” Obscene material depicts or describes sexual conduct in an offensive manner and lacks any artistic, political, or other important value. Indecent material is a little less offensive, and it is protected by the First Amendment. It has been defined as material which depicts or describes sexual or excretory activities in an offensive manner. Profanity, as defined by the FCC, includes language that is so offensive to people who hear it that is rises to the level of nuisance. Profanity is not always unlawful, foul words take on their indecent or profane character depending on the context of where and when they are spoken.

Currently, the Supreme Court is hearing a dispute between the major broadcast networks and the Federal Communications Commission. In the 1970s, the FCC was given authority to prevent profanity from airing on broadcast television between the hours of 6am and 10pm. Punishment for violating FCC regulations was limited then to cases where networks repeatedly aired profane language that was used in an effort to shock; one time slip up’s were excluded.  In response to the use of the F Word and the S Word by celebrities at award shows, the FCC adopted a policy which categorizes all profanity, even a single use of it, as indecent because certain words always create “sexual or excretory images.”

However, U.S. Supreme Court Justices do not all agree with the FCC’s contention that any use of the F Word or S Word always creates “sexual or excretory images.”  (more…)

Published in: on November 10, 2008 at 8:18 pm Comments Off on Fox News v. FCC: Indecent Restrictions on TV Profanity?

No Unanimous Opinion on Non-Unanimous Jury Verdicts

Among the cases that the Supreme Court declined to hear last month was Lee v. Louisiana.  In that case, Derick Todd Lee was convicted of second degree murder.  On its face, there is nothing odd about the case.  However, what is uncommon is that Lee was convicted by a non-unanimous jury verdict.  Louisiana and Oregon are the only two states that still allow individuals to be convicted of felonies by a majority of jurors.  They do not require unanimity.  The Oregon Constitution allows for non-unanimous guilty verdicts to be returned when 10 of 12 jurors agree on guilt, except in cases of first degree murder, where unanimity is required.  Louisiana allows guilty verdicts on a jury decision of 9 to 3, except in capital cases, where it requires unanimity.

In 1972, the Supreme Court upheld both the Oregon (Apodaca v. Oregon, 406 U.S. 404) and the Louisiana (Johnson v. Louisiana, 406 U.S. 356) provisions for non-unanimous jury verdicts.  Both cases resulted in a 5-4 decision that non-unanimous jury verdicts did not violate the Due Process Clause or the 6th amendment right to a jury trial.  In a concurring opinion, Justice Powell asserted that a unanimous verdict was constitutionally required in federal criminal trials because, at the time of the Bill of Rights, the prevailing notion was that jury verdicts must be unanimous.


Published in: on November 7, 2008 at 2:39 pm Comments Off on No Unanimous Opinion on Non-Unanimous Jury Verdicts

The Presidential Election and the Subsequent Shaping of the Supreme Court

On Friday September 26th, following the moot court trial of FCC v. Fox Television Stations that Mark wrote about here and for the Marshall-Wythe Press, there was a panel discussion regarding the 2008 Presidential contest between Senators Barack Obama and John McCain and how the election’s outcome would affect the Supreme Court.  The panelists were Walter Dellinger, John McGinnis, David G. Savage, Miguel Estrada, and Ted Shaw.

The panelists began the discussion by speaking in very general terms about the possibilities for either an Obama or McCain administration to shape the court.  Mr. McGinnis brought up a number of statistics to make his points.   He noted that the justices that would be considered ideologically liberal were much older than their conservative counterparts, on average.  He said, then, that under either administration there would more likely be seats vacated by the more liberal justices by “involuntary departures,” as he put it.  This would undeniably be to Senator McCain’s advantage should he be elected.  Mr.McGinnis further noted that Senator Obama would likely have a much easier time getting his nominees through the Senate, because it is estimated by the current polling available that the Democrats will have anywhere from 55 to 58 Senate seats after the 2008 election.  Further adding to Senator Obama’s advantage, according to Mr. McGinnis, is the speculation that one or two of the more ideologically liberal justices would like to retire, but would opt not to under a McCain administration.

The panelists also discussed the candidates’ favorite justices.  Senator Obama has cited Justices Breyer, Ginsburg, and Souter as “sensible”, whereas John McCain has cited Justices Roberts and Alito as his favorite justices.  Later in the discussion, Mr. Shaw engaged Mr. Estrada in a debate on the partisan nature of judicial nominations by saying “I want you to come back at me on this.”  Mr. Estrada had earlier argued that the contrasts between the Justices that Senators Obama and McCain would place on the bench would not be as stark as was being claimed by several of the panelists.  He decried the portrayal of the nominations in such an ideological, partisan manner because he believes it greatly damages the court’s reputation and reduces the logical, but divergent conclusions that the justices reach to simplistic partisanship.  In response, Mr. Shaw had said that he thought Mr. Estrada’s claims that judicial nominations aren’t a “my team against your team thing” were not really true.  He seemed to imply that because the law is pronounced and interpreted by people that it will always be shaped by their worldview and ideology and therefore, a partisan team analogy is appropriate.


Published in: on October 6, 2008 at 6:42 pm Comments Off on The Presidential Election and the Subsequent Shaping of the Supreme Court

WTF? FCC v. Fox Television Stations

On Friday night, a few of the nation’s leading law scholars argued whether fleeting expletives can be publicly broadcast without a fine.

The moot court was scheduled as part of the Institute of Bill of Rights Law annual Supreme Court Preview. This year’s case, FCC v. Fox Television Stations, featured Tom Goldstein, one of the nation’s top Supreme Court litigators, arguing to uphold a new FCC policy that penalized a single expletive uttered by rock star Bono during a broadcast of the January 2003 Golden Globes ceremony.

Goldstein noted the “increase in the coarseness of dialogue” while arguing that the FCC should have the right to change their policy and administer fines based on context. Justice John McGinnis from Northwestern Law School, commented on a perceived increase in vulgar language due to celebrities racing against each other for news coverage. Accordingly, a discussion of FCC v. Pacifica and George Carlin’s “Filthy Words” routine followed.

In one line of questioning, presiding Justice Linda Greenhouse, a renowned journalist, asked Goldstein why some bureaucrat gets to decide ex-post if a network is liable for a huge fine. Goldstein simply replied, “what Fox calls a bureaucrat is really an expert agency.”


Published in: on October 1, 2008 at 10:05 am Comments Off on WTF? FCC v. Fox Television Stations

Tom Goldstein visits W&M ACS

Tom Goldstein + W&M ACS“That was the most enjoyable hour I have spent in all of law school.”

Compliments like this have been pouring in for Tom Goldstein’s visit with W&M ACS this past Friday. His talk, titled “How a Supreme Court Practice Works”, gave us insight on Goldstein’s meteoric rise from law school “reject” to one of the nation’s top Supreme Court litigators.

His story begins with a distant cousin writing a letter to American University law school, helping him gain last-minute admission. This, Goldstein said, was a perfect example of how your legal career can be propelled by who you know– a recurring theme in Goldstein’s path to to the top.

While in law school, Goldstein managed to secure a part-time gig with Nina Totenberg at NPR because a Harvard student had to delay his arrival for the job due to a law review write-on competition. In Goldstein’s words, “I didn’t have that kind of problem.” He helped Totenberg out during a few Supreme Court confirmation hearings in the mid-90’s began creating a personal network of DC connections. During his stint with Totenberg, Goldstein did something fairly simple that nobody else was doing; specifically, he used a calculator to figure out statistics on the Supreme Court decisions. He determined who was the swing vote how many times and some other basic numbers.

After graduating from law school, Goldstein continued to crank out these numbers. By virtue of being the only one doing it, or perhaps they were too lazy to do the long division themselves, publications like the Wall Street Journal and the New York Times began quoting him. “According to Tom Goldstein, a Supreme Court expert who follows the docket very closely…”

Meanwhile, Goldstein was working in private practice and was using his statistical analysis to predict which circuit split cases the Supreme Court might grant certiorari. He landed his firm about four cases and on the fifth one he told his supervisor, “I would love the chance to argue one of these.” His supervisor, not surprisingly replied, “Perhaps you should try out another court first before the Supreme Court. You know, maybe get your feet wet at the Court of Appeals or something?” 

Instead, Goldstein quit his job and decided to start his own firm. Using his first-mover advantage, Goldstein began cold-calling potential Supreme Court case holders and pitching his services. When they asked him why they should give him their case, he would simply say, “Well, did you see the New York Times? They consider me an expert on the Supreme Court who follows the docket very closely…” 

Goldstein landed a few cases and quickly expanded his network of legal professionals. He contacted Stanford and asked to set up a Supreme Court clinic. When they asked why, he would simply say, “Well, did you see the New York Times…” Harvard got jealous, so they set up a Supreme Court clinic with him too. Goldstein essentially made a decision to corner the market in free Supreme Court work. And, he has done exactly that.

His advice to W&M ACS was to find something you love and do it, and do it better than anybody else. If nobody else is doing it yet (e.g. SCOTUSblog), you have a tremendous opportunity to be the world’s best– hey, it’s statistically proven.


Published in: on September 30, 2008 at 3:56 pm Comments Off on Tom Goldstein visits W&M ACS

Bethesda Buses: An Opinion Worthy of a Dissent

Standing – the question of whether the plaintiffs in a case even has a case that a court has the power to hear – can be a very complicated issue, but courts tend to make it even more complicated than it should be by … well … getting it wrong.

There are two common strategies courts employ to achieve this. First, they mix the question of standing with other questions such as ripeness, mootness, and the political question doctrine. Second, they include an additional, extrajudicial, element into the question of standing: do we WANT to hear this case.

The combination of these proven strategies-for-error result in many very interesting cases being dismissed on standing grounds, when they should (probably) be dismissed on other, more appropriate, grounds. There is even an entire class of cases in the Fourth Amendment area where the Supreme Court has already told everyone that what they were calling “standing” was actually just a decision on the merits, but, hard-headed as lawyers are, they insist on continuing to call it standing.


Published in: on May 27, 2008 at 9:25 am Comments Off on Bethesda Buses: An Opinion Worthy of a Dissent

The ACS Trip to Our Nation’s Capital

Recently, ten members of William & Mary’s chapter of the American Constitution Society drove up to Washington, D.C. to explore some of the capital’s most important landmarks.
Washington Monument Pt. ??

The first stop of the day – not counting Wawa on I-95 – was the Supreme Court of the United States. After inquisitively checking out the many busts of Chief Justices of the past (and wondering why the first, John Jay, was tucked away in a random stairwell), the group sat in on an informational question and answer session inside the very court where cases such as “The Bong Hits for Jesus Case” were decided. Ironically, the only other group at the Court on this particular day was composed of approximately sixty ten year-olds. When the tour guide invited the group to try to stump her on Supreme Court trivia, it was not one of the law schoolers who succeeded in doing so, but a small child from California who asked, “What was the fifth case argued in this Court?” The tour guide was stumped. She did know, however, the mythological significance of all of the sculpted figures decorating the upper walls, nearly all of whom were religious figures.

The second stop of the day, only a few feet from the SCOTUS itself, was the cafeteria of the Supreme Court of the United States (COTSCOTUS) where the group enjoyed a tasty meal in the same room where, as a plaque in the room explained, Antonin Scalia eats his breakfast every day, even when the court is not in session, “because that’s how the framers did it.” Highlights of the COTSCOTUS menu include the Burger and Frankfurter and the Blackmun and White milkshake. Hey-o!

After finishing the meal, the group headed to one of the Senate Office Buildings (SOBs) where they met with Kevin Landy, Chief Counsel to the Senate Committee on Homeland Security and Governmental Affairs, chaired by Senator Joseph I. Lieberman. Mr. Landy was kind enough to explain what his job involves and to answer the group’s questions about government in general. His charming mix of obvious intelligence and political savvy made him an immediate hit with the group.


Published in: on March 30, 2008 at 10:06 pm Comments Off on The ACS Trip to Our Nation’s Capital