RECENT OPINION: STATE V. VANG, September 8, 2010
Consider the improbability — evidence of deliberate, unfeeling killing; a nine-year-old conviction; a postconviction limitations period long since lapsed; an often contentious Minnesota Supreme Court – and a decision, by a vote of six-to-zero, to void Jerry Vang’s conviction and sentence for first degree murder. The rest of the story? In 2001, Jerry Vang was 14 years old.
Truncated Proceedings
In August of 2001, Vang got his hands on a gun and allegedly opened fire in a St. Paul alley, killing one person and wounding another. He was charged by delinquency petition with various counts of 1st and 2d degree murder. In September of that year, the state filed a certification motion. On November 6, 2001, Vang’s case was scheduled for hearing. Vang’s attorney and the prosecutor informed the assigned judge that the case was resolved. The Court’s opinion describes what happened next:
“Vang’s attorney asked Vang a series of leading questions to confirm that Vang understood he was ‘giving up’ his certification hearing, would be ‘treated as an adult,’ and would be sentenced as an adult. However, Vang did not stipulate to any of the factors required to certify the proceedings for action under the laws and court procedures controlling adult criminal violations. The juvenile court made no findings or ruling on the adult certification issue. Instead, the juvenile court simply accepted Vang’s guilty pleas to first-degree murder (drive-by shooting) and the attempted first-degree murder (drive-by shooting). Based on Vang’s guilty pleas, the court convicted Vang of adult criminal violations and imposed an adult sentence of life imprisonment for the first-degree murder (drive-by shooting) conviction and a concurrent 200-month prison sentence for the attempted first-degree murder (drive-by shooting) conviction.”
The written order memorializing the November hearing was captioned “Juvenile Division” and listed the juvenile court file numbers. It, too, omitted findings on any of the factors required for certification.
Vang wrote the state public defender well within the 90-day filing deadline, asking for an appellate attorney. The agency wrote back saying there was nothing that could be done for him. Vang wrote again, in February 2002, April 2005, June 2005 and October 2008. Three times more, the state public defender’s office said no. After Vang’s fifth letter, in October 2008, the state public defender appointed Vang a lawyer.
Big Shoulders
Under ordinary circumstances, Vang’s claims would have been time-barred. But Vang’s were not normal circumstances, according to the majority opinion authored by Justice Meyer; they were, rather, “exceptional and extraordinary,” and justified an exercise of the Court’s inherent authority. Inherent authority is the principle that big courts must sometimes use their big shoulders to set things right. Minnesota Constitution article VI, section 2, writes Justice Meyer, grants us “constitutionally independent authority to review determinations by the other state courts.” I was critical of the Court’s assertion of inherent authority last term in Lessley, the jury waiver case, and I still believe that the Court’s recent exercises of inherent authority ignore its older self-imposed limitations on that power. But, actually, I don’t care. I am not offended by the idea of a court with big shoulders. (It is interesting, though, that the Court elects not to hear the case under the postconviction statute’s “interests of justice” exception, when the Court made such a to-do about that exception’s viability only a week earlier in Gassler v. State.)
Criminal Actors Only Part Way Formed
This is not Jerry Vang. It is just a picture of a kid who reminds us what fourteenyearoldness looks like. At one level, State v. Vang came out the way it did because of a jurisdictional flaw: the judge who sentenced Vang as an adult criminal was still sitting in juvenile court. He was wearing the wrong hat. The Ramsey County Attorney’s office later fastened on this holding, assailing it as technical and finicky. But that criticism misses the larger point, and the current of outrage that surges through the Court’s opinion.
In 2001, a defense attorney pled out his (or her) fourteen-year-old client to the two top counts of a murder indictment three months into the case. For heaven’s sake, why? Was the state was huffing and puffing about seeking life without the possiblity of parole? So what? How likely was that to happen in Minnesota when the client was 14? The defense attorney apparently deemed it meet that the child should waive, not simply his certification hearing, but “cert” altogether — in other words, every protection that the juvenile justice system afforded him. A judge and a prosecutor were persuaded to go along with this. Did it occur to no one to read the statute or rule? A child cannot waive the jurisdiction of the juvenile court. He cannot waive the obligation of the trial court to ”fully investigate[ ] and carefully consider[ ]“ whether the juvenile court ought to surrender its jurisdiction. The trial judge in Vang’s case made no findings whatsoever, seemingly never consulted the certification factors in the juvenile rule. And then, compounding this sorry tale of cascading failures, the state public defender botched things too.
The elephant in Vang’s living room is the United States Supreme Court’s recent decision in Graham v. Florida. True, our Court never cites Graham, and Graham’s holding — it is cruel and unusual punishment to sentence a juvenile nonhomicide offender to life without parole — does not reach the issues in Vang. (Minnesota law, incidentally, does in one instance permit life without parole for juvenile offenders who do not kill; see Minn.Stat.§§260B.125(1) and 609.3455(2)). Nonetheless Graham and, before it, Roper v. Simmons, the juvenile death penalty case, have inscribed onto our jurisprudential conscience what every parent already knows — that juvenile personality structures are still in flux. In both cases, the Supreme Court relies on sociological and psychological literature that shows juveniles to possess a kind of “diminshed capacity” (Roper’s phrase) as compared to adults. Per Graham:
Roper established that because juveniles have lessened culpability they are less deserving of the most severe punishments. 543 U. S., at 569. As compared to adults, juveniles have a “`lack of maturity and an underdeveloped sense of responsibility’”; they “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure”; and their characters are “not as well formed.” Id., at 569-570. These salient characteristics mean that “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Id., at 573. Accordingly, “juvenile offenders cannot with reliability be classified among the worst offenders.” Id., at 569. A juvenile is not absolved of responsibility for his actions, but his transgression “is not as morally reprehensible as that of an adult.” Thompson, supra, at 835 (plurality opinion).
The interesting issue remaining in Jerry Vang’s case is, remanded for what? Now 23ish-year-old Vang never got his certification hearing. He cannot go back and re-create the mental miasma of fourteenyearoldness. The certification factors addressing juvenile justice options are moot. It will be a nice mess for someone to try to sort out.
RECENT OPINION, GASSLER V. STATE, September 2, 2010
Greetings. They’re back and so are we.
The early days of the new term bring Gassler v. State, a morality tale of sorts, featuring bad scientists, an (as it turns out) even worse defendant and a crummy narrative structure. The holding, you say? Right. Gassler holds that the interests of justice exception to the two year time bar in the postconviction statute has independent vitality — it does not merely rehash the other exceptions; it is not simply residual. The effect of the Court’s holding, theoretically, is to ease the postconviction time restrictions, but it is going to require someone more palpably deserving than Mr. Gassler to take advantage of it.
A Disgraced Technique
Mr. Gassler is serving a life sentence for first degree murder. He was convicted in 1992. At Gassler’s trial, an FBI agent testified that composite (or comparative) bullet lead analysis established that a bullet recovered from the decedent’s body came from a box of ammunition tied to Gassler. The forensic technique used by the FBI agent in Gassler’s case fell into disrepute a decade later. In 2005, the FBI announced that it was discontinuing composite bullet lead analysis, though it “still firmly support[ed] the scientific foundation” of the technique. Following an exposé by CBS’s 60 Minutes and The Washington Post in November 2007, the FBI clarified that it had stopped doing bullet lead analysis because of “the inability of scientists and manufacturers to definitively evaluate the significance of an association between bullets made in the course of a bullet lead examination.” The procedure, in other words, was a dud. It could not establish the origin of bullets. In May 2008, the FBI was still maintaining in correspondence with the Minnesota Attorney General that the testimony of the FBI agent in Gassler’s case was sound. In January 2009, however, the FBI disavowed the agent’s evidence, admitting that it was insupportable.
Meanwhile, in prison, Mr. Gassler was watching television — 60 Minutes, as it happens. By March 2008, he had filed a petition for postconviction relief (his second), arguing that he was convicted on the basis of false evidence. The trial court denied Gassler’s petition as untimely under Minnesota Statutes section 590.01, the postconviction statute.
Old Guilt Eats New Evidence for Breakfast
Section 590.01, subdivision 4(a), bans postconviction petitions filed more than two years after the entry of judment of conviction or sentence, if no direct appeal was filed, or more than two years after the disposition of the petitioner’s direct appeal. Subdivision 4(b) sets out five exceptions to the two year time bar. Only two of them come into play in Gassler: the exception for newly discovered evidence, and the exception in the interests of justice.
Justice Page authored the majority opinion. Justices Gildea and Dietzen agreed with the majority’s analysis of the newly discovered evidence exception, but disagreed with the majority’s take on the interests of justice exception and, as to that ground, concurred in the result only. Justice Stras did not participate.
To determine whether exception number two, for newly discovered evidence, of subdivision 4(b)’s five exceptions applies, there is a five part test. (Ain’t it great being a lawyer?) The Court only bothered with one of the five parts, to-wit: the newly discovered evidence must establish clearly and convincingly that the petitioner is innocent. Yup, that little thing. There was plenty of other evidence that hurt Mr. Gassler at trial, including testimony that he had admitted to a friend that he committed the murder. The Court held that, because he could not meet the clear and convincing evidence-of-innocence standard, Gassler could not use the newly discovered evidence exception to get around section 590.01′s time bar.
Picking Up Where They Left Off
The argument between the majority and the concurring justices with respect to the interests of justice exception resumes a debate that polarized the Court last term – what is the meaning of plain meaning? In its construction of the postconviction statute, the trial court declined to independently consider the interests of justice exception, reasoning that where the newly discovered evidence exception is unsatisfied, the interests of justice exception cannot apply. Justice Gildea’s concurrence endorses this view. The majority, writes Justice Gildea,
“thwarts the legislature’s very specific and detailed instructions about the circumstances in which a new trial should be granted [on the basis of the newly discovered evidence exception] when it allows Gassler a second chance to make out his case for a new trial under the more generic interests of justice exception. I would treat the interests of justice exception as a residual exception, intended to cover situations not covered by the other four exceptions of subdivision 4(b), not as a means by which petitioners may circumvent the more specific requirements of the other statutory exceptions.”
But the plain meaning debate takes an unaccustomed twist in Gassler. It is the Page-led majority who make a stand for strict construction. The Court emphasizes that the various exceptions to subdivision 4(b)’s time bar are connected by “or.” “Or” is disjunctive. Disjunctive clauses are all equally capable of application. If a petitioner can satisfy any of the five exceptions, the time bar does not apply.
The juiciest part of the debate takes place in the footnotes. Justice Gildea analogizes to the catch-all provisions in Minnesota Rule of Civil Procedure 60.02 and Federal Rule of Civil Procedure 60(b), arguing that subdivision 4(b)’s interests of justice exception should be treated similarly. Justice Page counters that, since she is resorting to extrinsic texts, Justice Gildea must be making a finding that subdivision 4(b) is ambiguous. Justice Gildea replies that she is doing no such thing. She is, rather, engaging in plain meaning analysis. She is simply using the rules as illustrations. The justices spar some more about the propriety of “illustrations.” This debate, in Gassler, comes off as slightly ridiculous, but it concerns a subject that has become the central fault line for the Court in in recent years: What is plain meaning? How is ambiguity determined? These issues divide the Court more than any others.
Uninterested
Having concluded that Gassler’s claims must be put to a separate, substantive interests of justice analysis, the majority hastens to dispense with them. Gassler’s case, the Court intones, does not present one of the “exceptional situations” for which the interests of justice exception is designed. Yes, says the Court, the trial court admitted scientific evidence linking Gassler to the murder which was later determined to have no scientific value. Yes, the delay in filing the postconviction petition “can only be attributed” to the FBI’s refusal to come clean about its faulty evidence prior to January 2009. “Problematic” as these things are, there was substantial untainted evidence of Gassler’s guilt and his trial was not fundamentally unfair. In fact, the Court concludes, it would be a “miscarriage of justice” to consider Mr. Gassler’s petition in the interests of justice. Take that, you miscreant.
One Legal and One Literary Criticism
1. The majority makes a big noise in defense of an independent interests of justice analysis, but the analysis itself is mostly a re-working of the Court’s earlier evidence-of-innocence discussion. The Court does not formulate any objective or even, really, articulable criteria (“exceptional situation” is a criterion, I suppose, but what in the world does it mean?) to guide a postconviction court’s exercise of judgment.
2. The majority makes a big noise in defense of an independent interests of justice analysis, and expresses plenty of umbrage at the FBI’s capriciousness to boot, before it abruptly skewers Mr. Gassler in the last sentence of its opinion. I read through twenty-two pages of majority opinion, and never saw that coming. Deus ex machina, oh Court. It is not fair to upend the show in the final moment, not even in a judicial opinion.
Hiatus
The fates have conspired to force the blog into an unplanned vacation. We’ll be back in August.
Last Day Flurry
Well! I spoke too soon about a summer coffee break. This, Justice Magnuson’s last day, brings a volley of new opinions, including six in criminal cases. The link to the Court’s bulletin is here. Looking quickly, I see one 4-3 and two unanimous decisions, and a welter of concurrences in the remaining cases. We’ll do more with the cases in coming posts.
Today provides the last opportunity for the Court to speak as these particular seven. One wonders about the cases that are being held over. Has the Court worked to get out on Justice Magnuson’s watch everything in which the vote is close? Are there remaining cases that will be locked in a 3-3 tie without Justice Magnuson’s vote? Those, presumably, would need to be re-argued. How about cases that are 4-2 without Justice Magnuson? The additional vote would not affect the outcome but if it serves to convert a 4 into a 5, it lends weight to the Court’s voice. Four-two risks the impression that the Court creates precedent on a chancy margin; of course, so does 4-3. Do you re-argue these cases?
SCOTUS: Carachuri-Rosendo v. Holder, June 14, 2010
Welcome to the Minnesota Supreme Court’s summer coffee break. We’ll do some end-of-the-term analysis, including an update of our statistical summary, later this summer.
SCOTUS Softening: Drugs & Deportation
In the meantime, the United States Supreme Court has decided Carachuri-Rosendo v. Holder, a case of some note for the criminal defense bar in the wake of Padilla v. Kentucky. The facts of the case are fused into the holding, which makes articulating it a bit cumbersome. Loosely, when a second or subsequent state court conviction for simple drug possession is not based on the prior, it does not necessarily constitute an aggravated felony for purposes of immigration law.
Carachuri-Rosendo, a lawful permanent resident of the United States, was convicted in Texas state court for two offenses that Texas law classified as misdemeanors: first, for possession of a small amount of marijuana, for which he received twenty days in jail; and later, for possession without a prescription of one Xanax tablet, for which he received ten days. Texas law, like federal law, authorized a sentencing enhancement if the state proved that Carachuri-Rosendo had previously been convicted of a similar offense. However, in the Xanax case, the Texas prosecutors elected not to charge the existence of the prior marijuana possession conviction.
The U.S. government commenced removal proceedings against Carachuri-Rosendo. If Carachuri-Rosendo had been convicted of an aggravated felony per the Immigration and Nationality Act (INA), then his removal (or deportation) was automatic. If he had not been convicted of an aggravated felony, then he was eligible to apply for discretionary relief from removal. The question was whether Mr. Carachuri-Rosendo’s second conviction, which might have been enhanced but wasn’t, qualified as an aggravated felony.
Hypothetical Hokum
The analysis in Carachuri-Rosendo was driven by an earlier case, Lopez v. Gonzales. Lopez possessed something less than five grams of cocaine. His offense constituted a felony under South Dakota law but not under 21 U.S.C. section 844(a), which establishes the felony threshold for a first offense at five grams. The Lopez Court held that a state offense only constitutes an aggravated felony if it proscribes conduct that is punishable as a felony under federal law.
The government’s argument in Carachuri-Rosendo started from the proposition that, had he been prosecuted in federal court, Carachuri-Rosendo might have been charged and convicted as a felon, and given a two year sentence. The government urged that the Lopez logic be extended to conduct that could have been punished as a felony under federal law — in other words, that the Court adopt the hypothethical mirror image of the Lopez rule, i.e.,
Lopez: State (F) → Federal (M) ≠ Aggravated Felony
Gov’t: State (M) → potential Federal (F) = Aggravated Felony
No thanks, said Justice Stevens for the majority. ”The Government’s position . . . would treat all ‘conduct punishable as a felony’ as the equivalent of a ‘conviction’ of a felony whenever, hypothetically speaking, the underlying conduct could have received felony treatment under federal law. We find this reasoning–and the ‘hypothetical approach’ itself–unpersuasive.” The Court particularly stressed that Carachuri-Rosendo had not been convicted of a recidivist offense in Texas. A federal immigration court “cannot, ex post, enhance the state offense of record just because facts known to it would have authorized a greater penalty under either state or federal law. Carachuri-Rosendo was not actually ‘convicted’ . . . of a drug possession offense committed ‘after a prior conviction . . . has become final,’ §844(a), and no subsequent development can undo that history.”
For the Minnesota defense bar, some good news and some less clearly so
1. The better news, for the defense bar, was probably Lopez. Minnesota law makes felonious some possession offenses that federal law treats as misdemeanors. First-time convictions for these offenses should not be considered aggravated felonies in immigration court. Any controlled substance offense renders the client removable but if the conviction is for something other than an aggravated felony, the client retains eligibility to seek discretionary relief from removal.
2. How to think about Carachuri-Rosendo in light of State v. Bluhm and State v. Turck, the Minnesota Supreme Court and Court of Appeals cases, respectively, which say that the trial court must abide by the mandatory minimum sentences for subsequent controlled substance convictions? It was pivotal to the Carachuri-Rosendo Court that the Texas prosecutor chose not to prove up the prior. Apparently, under Texas law, like federal law, mandatory penalties are not automatic. In the federal system, 21 U.S.C. § 851(a)(1) requires that a defendant be afforded notice and an opportunity to challenge the validity of the prior conviction before the enhanced sentence may be imposed. There is no comparable express procedural safeguard in Minnesota’s chapter 152. Minnesota law does provide an escape hatch from section 152.025′s mandatory penalties; the statute permits a prosecutor to move to disregard them. But this applies only in 5th degree cases, and it is not based on any notion of fair process. It is, I think, an open question in Minnesota whether the mandatory penalties will apply if the state neither charges nor proves them. An unpublished court of appeals case, State v. Garcia, opines that it is a “questionable proposition that a prosecutor may effectively nullify the application of the mandatory minimum sentence provision under Minn. Stat. § 152.023, subd. 3(b), to any given complaint simply by omitting any reference within the complaint to that provision.” Given the relative inflexibility surrounding the application of enhanced drug penalties in Minnesota, Charachuri-Rosendo may represent less welcome news here than in other places.
3. I miss Justice Souter, the writer. This, from the majority opinion in Lopez, is typically economical and droll:
“Reading §924(c) the Government’s way, then, would often turn simple possession into trafficking, just what the English language tells us not to expect, and that result makes us very wary of the Government’s position. Which is not to deny that the Government might still be right; Humpty Dumpty used a word to mean ‘just what [he chose] it to mean— neither more nor less,’ and legislatures, too, are free to be unorthodox. Congress can define an aggravated felony of illicit trafficking in an unexpected way. But Congress would need to tell us so, and there are good reasons to think it was doing no such thing here.“
RECENT OPINION: STATE V. HER (HER II), May 6, 2010
Once upon a time, before the United States Supreme Court decided Crawford v. Washington, there was this esoteric spinsterish legal doctrine called forfeiture-by-wrongdoing.
Today she’s a big bosomy lass with her name in lights.
For the second time this term, the Minnesota Supreme Court has decided a forfeiture-by-wrongdoing case. The first time it did so was in State v. Cox, which we discussed here, involving that exception’s unavailability requirement. Now we have State v. Her (Herr II), dealing with the so-called murder exception to the confrontation clause.
Sir Walter Raleigh is watching you
Moua Her was convicted of murdering his estranged wife, Sheng Vang, while committing domestic abuse. At Her’s trial, a St. Paul police officer was permitted to testify concerning statements Vang made some weeks before her death about an earlier beating by Her.
The forfeiture-by wrongdoing doctrine states that a defendant who engages in wrongful conduct that is intended to and does in fact procure the unavailability of a witness forfeits his right to confront the witness. In the first installment of the Her series (Her I), the Minnesota Supreme Court recognized an exception to the doctrine’s intent requirement in murder cases. The Court held that the state may invoke forfeiture against a defendant without having to first prove that the motive for the murder was the defendant’s desire to prevent the decedent from testifying. Justice Gildea wrote for the majority that Minnesota’s case law recognizes an “implicit distinction” between a witness tampering case, where intent to silence is required, and a murder case, where the additional element of intent to silence is not required because the defendant is responsible for the death of the witness.
Justice Page, concurring in the result only, objected ardently to this reasoning:
“Viewed from a historical perspective, the court’s reliance on the existence of an unwritten ‘murder exception’ to the Confrontation Clause is patently absurd. If such an exception existed, it would be readily apparent. It is not as if the victim’s absence at murder trials constitutes a peculiarly modern problem of which the Framers of the Sixth Amendment were unaware and could never have anticipated, yet the court cites nothing in ancient continental law, English case law, the Federalist Papers, the Antifederalist writings, Crawford, Davis, the numerous scholarly articles discussing the Sixth Amendment, or any case decided in the 400 years leading up to Crawford to indicate that there was historically such a thing as a ‘murder exception’ to the confrontation right. Such an omission is telling. Given the sheer number of murder trials that have come through this nation’s courts, one would expect a ‘murder exception’ to be solidly established if it was anything but a modern construct designed to evade Crawford.”
Ire and ice
Shortly after Her I came down, the United States Supreme Court decided Giles v. California. On grounds very like those expressed by Justice Page in Her I, a divided Court appeared to put to rest the notion that there is a murder exception to the right of confrontation. ”We decline,” wrote Justice Scalia for the majority, “to approve an exception to the Confrontation Clause unheard of at the time of the founding or for 200 years thereafter.”
SCOTUS remanded Her to our high court for re-consideration in light of Giles, and Her II was the result. Once again, Justice Gildea authored the majority opinion. Notwithstanding the vindication of Justice Page’s position in Giles, Her II managed to continue the row between Justices Gildea and Page. Justice Gildea and the majority acknowledged that Giles is controlling but held that the case must be remanded to the trial court for an evidentiary hearing on the issue of Her’s intent to prevent Vang from testifying. In Her I, the Her II majority explained cooly, the Court relied on its earlier decision in State v. Langley, which, like Her I, did not require proof that the defendant killed with victim with the specific intention to silence her. At the time Her I was litigated, said the Court, Langley was “controlling authority in Minnesota on the application of the forfeiture-by-wrongdoing doctrine in a case where the murder victim was also the unavailable witness.” Giles therefore represented a change in the law. A remand was called for because the state had not been afforded an opportunity to develop its factual record under the Giles rule.
In dissent, Justice Page insisted that no remand was warranted. ”The stark reality,” he wrote, “which the court would like to ignore, is that Giles was not an announcement of a new rule or principle of law but rather the rejection of various courts’ attempts to create a murder exception, lacking any basis in common law, to the forefeiture-by-wrongdoing doctrine.” Langley was “an anomalous outlier”, a “perversion of the forfeiture doctrine crafted for unknown and unexplained reasons to make an end run around the Confrontation Clause.” The state had had its opportunity to develop its factual record, he said. It was not entitled to a remand “for a second bite at the apple.”
A Pyrrhic victory?
So which is it? Did Giles change the law in Minnesota? It seems a stretch to say that it did. The majority heaps a lot of freight on one slender case, Langley, and ignores a pile of authority that does not coincide with its analysis. There is, I think, something to Justice Page’s charge that our court (and others) are prepared to resort to sophistry, if necessary, to ward off Crawford’s blunt application in murder cases. But Giles itself demonstrates that there is less certainty about Crawford’s force in murder cases than Justice Page’s analysis admits. Giles was decided by a 6-3 majority. In a post titled “A Way Around the Giles Rule,” SCOTUSblog’s Lyle Denniston observes as follows:
“Justice Scalia, in comments that appeared to be made at least partly to hold two of the six votes (and thus majority prevailing over three dissents), said that state courts were free now to probe what Giles’ intent was in killing his former girlfriend. If there is proof of an ‘abusive relationship’ that ends in murder, Scalia said, that might support a finding that the crime represented an intent ‘to isolate the victim and to stop her’ from reporting the abuse or cooperating with a criminal investigation.
“He added: ‘Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.’ That is the kind of potential evidence of intent that state courts may now examine, the opinion said.
“Justice David H. Souter, in a separate opinion joined by Justice Ruth Bader Ginsburg, gave special emphasis to the situation that might be present if a ‘domestic abuser in the classic abusive relationship’ sought to keep the victim from seeking help from law enforcement officers. ’If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger,’ Souter wrote.
“Since their votes were essential parts of the majority, the added emphasis on a situation of domestic abuse (an emphasis that the three dissenters embraced, incidentally) could limit the impact on prosecutions that the Court’s decision might otherwise have.”
Given the concerns they express and their own remand in Giles, it is hard to imagine that the SCOTUS justices would take issue with what the Her II majority has done. When it comes to the murder exception, it may well turn out that the reports of its death in Giles were greatly exaggerated.
What they’re saying: Berghuis v. Thompkins
–Lyle Denniston, SCOTUSblog
–Op-Ed, New York Times
Charles Weisselberg, Huffington Post
“There is good reason to require an accused who wants to invoke his or her right to remain silent to do so unambiguously. A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that ‘avoid[s] difficulties of proof and . . . provide[s] guidance to officers’ on how to proceed in the face of ambiguity. Davis, 512 U. S., at 458–459. If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression ‘if they guess wrong.’ Id., at 461. Suppression of a voluntary confession in these circumstances would place a significant burden on society’s interest in prosecuting criminal activity.”
–Justice Kennedy, opinion of the Court, Berghuis v. Thompkins
“The Court concludes today that a criminal suspect waives his right to remain silent if, after sitting tacit and uncommunicative through nearly three hours of police interrogation, he utters a few one-word responses. The Court also concludes that a suspect who wishes to guard his right to remain silent against such a finding of “waiver” must, counterintuitively, speak—and must do so with sufficient precision to satisfy a clear-statement rule that construes ambiguity in favor of the police. Both propositions mark a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona, 384 U. S. 436 (1966), has long provided during custodial interrogation.”
–Justice Sotomayor, dissenting, Berghuis v. Thompkins
SCOTUS: Miranda: Silence doesn’t cut it
The United States Supreme Court held today that a suspect must specifically tell police that he wishes to remain silent before he may invoke Miranda’s protections. Strongly worded dissent from Justice Sotomayor. The case is Berghuis v. Thompkins. Early summary here from the AP.
Update: Here’s the link to case.
Thomas Solmer on the MN Court of Appeals, Harrison v. Comm’r of Public Safety
On May 4, 2010, the Minnesota Court of Appeals held in Harrison v. Commissioner of Public Safety that no Fourth Amendment search occurs when the government actually tests the alcohol concentration of a blood sample that was previously drawn and preserved. Harrison challenged the revocation of his driving privileges, arguing that any exigency that made the initial warrantless draw of his blood reasonable ceased to exist when the sample was taken and preserved. Any later testing of the blood sample for its alcohol concentration, Harrison continued, required a warrant or some additional exception to the warrant requirement. The Court of Appeals rejected this argument in a brief and rather dismissive decision. The subsequent testing of the blood, the court held, is not “a search that implicates constitutional protection.” That holding is not supported by even the scant authority cited by the court, and it ignores United States Supreme Court precedent in the area.
Specifically, the Harrison court ignores SCOTUS’s decision in Skinner v. Ry. Labor Executives’ Ass’n. Skinner deals with blood alcohol testing in the employment context. The Court held that, following a blood draw, “[t]he ensuing chemical analysis of the sample to obtain physiological data is a further invasion of the tested employee’s privacy interests.” The Court was concerned because “chemical analysis of urine, like that of blood, can reveal a host of private medical facts about a [person], including whether he or she is epileptic, pregnant, or diabetic.” Accordingly, said the Court, “the collection and subsequent analysis of the requisite biological samples must be deemed Fourth Amendment searches.”
Skinner remains good law and was, notably, cited by the Minnesota Supreme Court in a case that Harrison in turn cited, State v. Netland. Netland itself implicitly includes the testing of a breath sample in its constitutional analysis, rather than limiting that analysis to the collection of the breath sample (“the search in this case [was] to obtain Netland’s blood-alcohol content,” and holding that under certain described circumstances, “no warrant is necessary to secure a blood-alcohol test”).
Harrison reaches its erroneous conclusion by misstating the Katz standard for when the Fourth Amendment is implicated. Justice Harlan’s oft-quoted concurrence specifies that there is “a twofold requirement” for Fourth Amendment protection to arise: “first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” The expectation of privacy applies to the place searched, not the thing sought.
In contrast, the Harrison court reasons that once “the state has lawfully obtained a sample of a person’s blood under the implied-consent law . . . , the person has lost any legitimate expectation of privacy in the alcohol concentration derived from analysis of the sample.” This is an erroneous application of Katz and its progeny. In no prior case has the analysis of the privacy interest been limited to the thing sought rather than the place searched. Were this rule extended, the police could enter a person’s home looking for contraband without the Fourth Amendment being implicated, on the ground that no person has a legitimate expectation of privacy in contraband. Such a rule is unworkable and would eviscerate all Fourth Amendment protections.
Even the cases cited by Harrison do not support its conclusion. In United States v. Jacobsen, the United States Supreme Court considered whether a field test of a suspicious powder believed to be cocaine was a search. The test was held not to be a search because “governmental conduct that can reveal whether a substance is cocaine, and no other arguably ‘private’ fact, compromises no legitimate privacy interest.” The field test was compared to the use of drug-sniffing dogs to examine luggage, which sniffs are not considered searches because they do not “expose noncontraband items that otherwise would remain hidden from public view.” United States v. Place. In both cases, the Fourth Amendment is found inapplicable only because the intrusions at issue could not possibly reveal information regarded as legitimately private. The intrusion is measured not by what is sought but by what might be found.
Harrison’s citation to the extra-jurisdictional case of United States v. Kincade is most troubling. The citation appears in this context:
“We conclude that when the state has lawfully obtained a sample of a person’s blood under the implied-consent law, specifically for the purpose of determining alcohol concentration, the person has lost any legitimate expectation of privacy in the alcohol concentration derived from analysis of the sample. See United States v. Kincade, 379 F.3d 813, 837 (9th Cir. 2004) (holding, in connection with statutory DNA testing of individuals convicted of certain crimes, that after a defendant’s identity has become a matter of state interest due to conviction of certain crimes, the defendant has lost any legitimate expectation of privacy in the identifying information derived from blood sampling). “
As portrayed in Harrison, Kincade holds that the chemical analysis of a convicted offender’s blood is not deemed to be a search. The Harrison court intimates that the court in Kincade did not bother to apply a Fourth Amendment analysis to the DNA testing. That is just wrong. What the Kincade actually said was as follows:
“We believe that such a severe and fundamental disruption in the relationship between the offender and society, along with the government’s concomitantly greater interest in closely monitoring and supervising conditional releasees, is in turn sufficient to sustain suspicionless searches of his person and property even in the absence of some non-law enforcement ‘special need’—at least where such searches meet the Fourth Amendment touchstone of reasonableness as gauged by the totality of the circumstances.”
Kincade thus upheld the collection and analysis of DNA samples as a reasonable search, considering the reduced privacy expectations of “lawfully adjudicated criminals whose proven conduct substantially heightens the government’s interest in monitoring them.” At no point does Kincade declare the DNA profile analysis not to be a search; rather, the fact that it can reveal “only a record of the defendant’s identity—otherwise personal information in which the qualified offender can claim no right of privacy once lawfully convicted of a qualifying offense” is discussed in the context of the Fourth Amendment analysis, in which the court balanced the governmental and privacy interests involved to measure the reasonableness of that search.
As discussed in Kincade, the rule that warrantless searches must be justified by an established exception within well-defined circumstances is not without exception itself. The courts have recognized that there are times “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” Griffin v. Wisconsin “When faced with such special needs, [the courts] have not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable-cause requirements in the particular context.” Skinner.
There are therefore two roads by which Harrison could have legitimately reached its result. The court might have been able to conclude that the chemical analysis was not a search if the record contained facts sufficient to demonstrate the analysis could reveal no private information whatsoever other than alcohol concentration. Alternatively (and, in the view of this author, preferably), the court could have found the analysis to be a search that was nonetheless reasonable under the totality of the circumstances. Such a finding would be well-supported, since the privacy intrusion is slight, the government interest is great, the testing procedures are well-defined, and the benefits of imposing a warrant requirement would be de minimus.
One wonders if the Harrison court simply forgot about this residual, general exception to the warrant requirement. Its failure to mention Skinner, the most apposite United States Supreme Court case on the issue, is bewildering. In the push to ensure the efficient prosecution of impaired driving offenses, and in light of the myriad ongoing legal battles relating to chemical tests for intoxication, it may be tempting for a court to dismiss a novel argument as unworthy of serious legal analysis. The short-cut taken by Harrison, though, is an unacceptable rejection of well-established Fourth Amendment precedent. Constitutional protections do not evaporate on probable cause for DWI. A free society is not one that is ungoverned, but one in which the government must constantly demonstrate the legitimacy of its decisions to the people. Harrison appears to fall short of that responsibility.
RECENT OPINION: BRAYTON v. PAWLENTY, May 5, 2010
In the unallotment case, a controversy about power-sharing between the executive and legislative branches becomes the vehicle for the Minnesota Supreme Court to debate its own legitimate role in the constitutional order. Whatever else you may think about the case’s outcome or the Supreme Court appointments that came in its wake, it is hard to deny Brayton’s pungency during a remarkable week in the Court’s history. As everyone knows by now, Justices Magnuson and Gildea, two proponents of judicial restraint, laid out the competing arguments in the case.
Chutzpah & the little “c” court
The Pawlenty appointees–Justices Magnuson, G. Barry Anderson, Gildea and Dietzen–form the Court’s fulcrum. As we pointed out in an earlier post, they vote together, at least in criminal cases, some fantastic percentage of the time. They share the view that courts should yield to plausible judgments of the legislative and executive branches. They value jurisprudential modesty. They are averse to ambitious statements and broad rules. They prefer to decide no more than is absolutely necessary to resolve a case. They favor a deferential, little “c” court.
The Brayton dissenters accuse the majority — and, specifically, Justice Magnuson, the majority author — of deserting these principles. The argument feels personal. In the opening paragraph of the dissent, Justice Gildea intones that “[t]he judiciary’s ‘duty’ is simply ‘to apply the law as written by the legislature’ ” — and then appends the information that the source for the original quote was “Magnuson, C.J. for a unanimous court.” The rest of the paragraph completes the charge against Magnuson, et al.: ”The majority is unable to [apply the law as written by the legislature] because the language the Legislature used in the unallotment statute leaves the majority with uncertainty and ambiguity. The majority therefore rewrites the statute to insert additional conditions, and then finds that the Commissioner of Minnesota Management and Budget (Commissioner) violated the statute because he did not comply with the conditions the majority has added.”
I do not read the majority opinion quite this way. In fact, as I read the opinions in Brayton, it is the majority position that impresses me for its rectitude, and the dissenting opinion that strikes me as immodest. It is the dissenters, it seems to me, who take liberties with the text, who reach to impose their will, and not the other way around.
Facts are specious things
It is reasonable to expect that a minimalist, non-interfering court would pride itself on taking the facts where it finds them. To do otherwise — to omit, ignore, or too deliberately manage, sculpt or stage the facts — effectively insinuates a court into the merits. It converts a passive court into an active one. It makes the court a player.
The majority opinion recounts the events that culminated in the executive branch unallotments (the numbering is mine):
- In November 2008 Minnesota’s budget commissioner forecast a 2010-2011 biennium deficit of $4.847 billion
- In February 2008 the commissioner forecast a deficit of $4.57 billion
- In January 2009 the governor submitted a proposed budget with anticipated revenues of $31.07 billion
- In March 2009, the governor submitted a revised budget with anticipated revenues of $29.905
- In April 2009 the commissioner updated its information to reflect that February and March revenues were $46 million less than projected in the February forecast
- On May 9, 2009 the governor vetoed a revenue bill that increased taxes in order to meet the anticipated revenue shortfall
- Between May 4 and May 18, the legislature passed appropriation bills that reduced spending below the levels projected in the February 2009 forecast; the projected $4.57 billion deficit was reduced to $2.7 billion
- The governor signed the appropriation bills into law
- On May 18, 2009, the day it was required to adjourn, the legislature passed a revenue bill that would raise taxes to address the $2.7 billion remaining deficit
- The governor vetoed the second revenue bill
- The legislature had adjourned by the time of the veto
- The governor did not call a special session of the legislature
- On June 4, 2009, the commissioner informed the governor by letter that the unallotment conditions had been satisfied; namely, the commissioner had determined that probable receipts for the general fund would be less than anticipated; and the amount available for the remainder of the 2010-2011 biennium “will be less than needed”
- The governor approved proposed unallotments of approximately $2.5 billion on July 1, the first day of the biennium
- The commissioner implemented the unallotments beginning in July 2009; some of the unallotments were effective for both the first and second years of the biennium, some only for the second
- The commissioner reduced allotments to the Minnesota Supplemental Aid program (which includes the specific Special Diet program challenged in Brayton) by $2.866 million for FY 2010 and $4.3 million for FY 2011.
- The effect of these unallotments was to eliminate Special Diet Program payments from November 1, 2009 through June 20, 2011, the end of the biennium
The dissent’s version of the facts dramatically downplays events 3, 4, 5, 6, 9, 10, 11, 12, 14, 15 and 16. Justice Gildea’s initial factual recitation omits to mention that the governor twice vetoed revenue bills that were intended to meet the shortfall; that the second veto followed the legislature’s mandated adjournment date; that thereafter the governor declined to call the legislature into special session; that the governor approved and ordered the unallotments on the first day of the 2010-2011 biennium; and that the cuts to the Special Diet Program formed part of a larger Minnesota Supplemental Aid unallotment of $2.866 million for all of FY 2010. Justice Gildea refers to to some of these events in the body of her argument, but only in the most cursory manner (i.e., “‘[R]espondents contend that when the Governor signed appropriation legislation and vetoed revenue legislation, the Governor (and therefore the Commissioner) knew that the state would not have funds sufficient to satisfy the financial obligations in the appropriation legislation.”).
The point of including the information in points 3, 4, 5, 6, 9, 10, 11, 12, 14, 15 and 16 is not, as the dissent dismissively asserts, to cast blame about “[w]hich of the two coordinate branches of government is responsible for the budget shortfall.” These things matter because the Court was obliged to make mixed factual-legal determinations that turned on these events. The dissent erased pertinent facts that were inconvenient to its analysis.
When Unanticipated?
Brayton deals with the meaning of two triggering conditions that are laid out in the unallotment statute, Minn. Stat. section 16A.152, subd. 4. These conditions are the state budget commissioner’s determinations that (1) “probable receipts for the general fund will be less than anticipated” and (2) “the amount available for the remainder of the biennium will be less than needed”. The statute does not explicitly answer the question when these determinations are to be made. Anticipated when? Remainder measured from what point in time? The statute does not say.
The majority finds that, lacking express temporal benchmarks, the statute is susceptible to more than one reasonable interpretation, and is therefore ambiguous. The Court winds up endorsing the respondents’ interpretation, which construes the statute in a common sense fashion that ascribes real meaning to all of the words that actually appear there. ”The common meaning of ‘remainder’ is . . . something less than the whole, after part of the whole has been removed or consumed. Accordingly, the requirement that the Commissioner find that ‘the amount available for the remainder of the biennium will be less than needed” . . . reasonably means that the triggering circumstance (amount less than needed) cannot logically be met until some of the biennium has passed, and that the unallotment process can never apply to a full biennium.” Moreover, continues the Court, the two clauses “are joined by the conjunctive ‘and’; and when read together, the natural conclusion is that the determination about receipts being ‘less than anticipated’ must be related to ‘the amount available for the remainder of the biennium.’ “
Justice Gildea argues that the statute is clear on its face, and that it can be applied “as written” to uphold the executive branch’s unallotments. Were probable receipts less than anticipated? The dissent says, incredibly, yes. All that is required, writes Justice Gildea, is that the commissioner “make this determination before he unallots.” The statute “does not provide any deadline by which the Commissioner is to make this determination.” The dissent simply avoids answering when, exactly, the budget shortfall was unanticipated. When the governor vetoed the first revenue bill? The second? When he declined to call the legislature back into special session? These are all facts that largely fell out of the dissent’s narrative. The budget shortfall was not just anticipated; it was front-and-center in the participants’ minds throughout the legislative season. Given Justice Gildea’s espoused commitment to applying the “plain language” of the unallotment statute, should not the dissenters have come down the opposite way?
A remaining point
One of the facts the dissent omits is that the governor approved the unallotments, including the FY 2010 unallotment to the Minnesota Supplemental Aid program which includes the Special Diet Program, on July 1, 2009, the first day of the biennium. This is crucial information for purposes of ascertaining the effect of the word “remainder” on the unallotments’ legality. Instead, Justice Gildea fixes on the fact that the withholding of funds for the Special Diet Program did not occur until November 1, 2009. She writes:
“The only question presented in this case is whether the decision to unallot funds from the Special Diet Program complies with the statute. As to the Special Diet Program, the Commissioner determined that ‘the amount available for the remainder of the biennium will be less than needed’; that is, the amount available, starting November 1, would be less than needed to fund the Special Diet Program for the remainder of the biennium. Further, there is no dispute that the Special Diet Program funds were not unallotted until November 1. The Commissioner’s determination that there would be insufficient funds for this program was, indusputably, only with respect to a portion of the biennium and not the entire biennium. We therefore have no occasion in this case to determine whether decisions to unallot that were effective on the first day of the biennium violate the statute.”
The executive unallotment order concerning the Special Diet Program was given on July 1, 2009 . It was part of a larger FY 2010 unallotment of the Minnesota Supplemental Aid program. The Special Diet Program did not actually lose funds as a result of the governor’s order until November 1, 2009, the implementation date, but the operative decision was made on the first day of the biennium. The dissent appears to have purposefully made a hash of these facts. This strategem allows Justice Gildea to shrink the issue so dramatically that the troublesome “remainder” question is simply removed from the frame.
It is minimalist credo that issues are to be framed narrowly. The aspirational rationale for doing so is to curtail judicial incursion into the decision-making of the other branches and to leave as much as possible open for democratic deliberation. I am having a hard time squaring these purposes with what the dissent has done in Brayton. It took, in my opinion, a bold act to force the remainder issue into so artificially narrow a container. It took boldness to edit the factual record as liberally as was done here. In particular, it is hard to square the dissent’s exclusion of the facts describing the process of democratic deliberation with a judicial aspiration to promote the same. The dissent’s methods in this case suggest not prudence, but its opposite. Mostly they suggest a willful effort to give a muscular hand up to the capital “E” Executive.
