Supreme Court

By Lance J. Rogers

Although none of the U.S. Supreme Court's criminal law decisions this year drew as much media attention as the health care ruling, the court did issue a handful of opinions that could have a big impact on the way attorneys practice criminal law, according to legal experts who spoke to BNA about the 2011-2012 term.

Among the most significant decisions, these experts said, are Missouri v. Frye, 2012 BL 67235, 90 CrL 849 (U.S. 2012), and Lafler v. Cooper, 2012 BL 67236, 90 CrL 850 (U.S. 2012), which clarified that a defendant's Sixth Amendment right to effective assistance may be violated when a defendant misses out on a favorable plea offer due to defense counsel's erroneous advice or failure to even convey the offer.

“Those two cases will have the most dramatic ripple effect,” as they recognize that plea negotiations make up the bulk of the criminal justice system and are not simply an occasional adjunct, Professor Jeffrey L. Fisher, of Stanford Law School's Supreme Court Litigation Clinic, told BNA.

William G. Otis, an adjunct professor at the Georgetown University Law Center, Washington, D.C., agreed that the Frye/Lafler decisions were the most significant development of the term, but not just because such a large percentage of cases are resolved by plea bargains. The decisions could very well result in “a boatload” of challenges to “previously settled, bargained-for convictions and sentences” because such attacks are allowed even if everyone agrees the defendant got a fair trial, Otis told BNA.

‘Blind Spots.'

In Fisher's view, plea negotiations and sentencing are two of the “blind spots” in the criminal justice system. In prior years, the court has devoted a lot of attention to the constitutional issues in the trial process itself, but it is now focusing on the back and front end of the system, he said.

“The court is bringing the constitution to bear on a process virtually every criminal defendant is a part of,” he said.

Examples of big sentencing decisions cited by Fisher include Miller v. Alabama, 2012 BL 157303, 91 CrL 413 (U.S. 2012), which held that juveniles convicted of murder cannot be sentenced to a mandatory term of life without parole; Southern Union Co. v. United States, 2012 BL 153980, 91 CrL 415 (U.S. 2012), which held defendants are entitled to have juries—not judges—decide the facts that boost criminal fines; and Dorsey v. United States, 2012 BL 153786, 91 CrL 416 (U.S. 2012), which held that the law lowering mandatory minimum penalties for crack cocaine offenses applies to offenders who were in the criminal justice pipeline when the law was enacted.

Professor Laurie Levenson, of Loyola Law School, Los Angeles, agreed that Frye and Lafler were “huge,” but she tagged the court's ruling in United States v. Jones, 2012 BL 14420, 90 CrL 537 (U.S. 2012), as perhaps “the biggest doctrinal shift of the term.” In that case, a majority of the court eschewed the traditional expectation-of-privacy test and used a common-law trespass analysis to rule that the government violated the Fourth Amendment when it placed a GPS tracking device on a vehicle without a search warrant.

Summing up the court's term more broadly, Levenson told BNA: “The justices are concerned about privacy, they still don't love Miranda, and they tend to side with law enforcement in dangerous situations. They also want the states to run their own criminal justice systems and they want a minimum level of professionalism from criminal defense lawyers.”

Although there might not have been any “blockbusters” this term, Levenson said, “The court gave law professors plenty to write about.”

Others saw the court's term as simply a continuation of trends that have been developing for years. Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, likewise noted that there were no criminal justice blockbusters this term. In an interview with BNA, Scheidegger characterized the decisions this term as “narrow across the board.” Mostly the court continued to clarify existing trends, he said.

If there was a trend, it was that the court took an unusual number of right-to-counsel cases, Scheidegger remarked.

Right to Effective Plea Bargaining

In Frye, the court declared that the right to effective assistance of counsel extends to the plea bargaining process where, according to the court, 97 percent of all federal prosecutions and 94 percent of all state prosecutions are resolved. It ruled that a defendant who wound up pleading guilty to a felony after his lawyer failed to communicate a favorable plea offer before it lapsed should be allowed to go forward with a Sixth Amendment claim of ineffective assistance of counsel.

Lafler held that a defendant may go forward with an ineffective-assistance claim where counsel gave flawed advice, and it also rejected an argument that any errors in the plea bargaining process are eradicated so long as the ensuing trial and conviction are fair.

It is this last point that gives some observers pause, however. “Lafler is potentially revolutionary in that the state is now entirely at the mercy of defense counsel when it offers a plea,” Otis told BNA.

Before Lafler, a prosecutor could try a clean case and present enough solid evidence of guilt that any minor mistake would be deemed harmless error, Otis said. Now that same overwhelming case could help establish that counsel was incompetent for advising his client to eschew a deal and go to trial, he said.

Otis, who is a former federal prosecutor, also suggested that these decisions could encourage “slippery practice.”

“Indeed, the culture of the defense bar has come to the stage that a more-in-sadness-than-in-anger admission of professional malfeasance (perhaps abetted by fatigue, stress, needed but powerful medications—something highly temporary and not really morally blameworthy) is regarded less as an admission of professional failure and more as a badge of honor for going the last mile for the client,” he said.

Prosecutors Have Stake But No Control

Former American Bar Association Criminal Justice Section chairman Bruce Green told BNA he was surprised that the four dissenting justices in Frye and Lafler thought it did not matter that the defendant got a significantly longer jail sentence because of counsel's mistake as long as there were no trial errors.

“A decision going the other way would have excluded a big category of cases from the protection of the Sixth Amendment right,” he said.

Green, who is a professor at Fordham University School of Law, New York, took issue with the dissent, which said the ordinary criminal process has become “too long, too expensive, and unpredictable, in no small part as a consequence of an intricate federal Code of Criminal Procedure imposed on the States by this Court in pursuit of perfect justice.”

That is an extraordinary assertion, Green said. “The overwhelming majority of defendants plead guilty; at least in misdemeanor courts, many resolve their cases at their arraignments after only the briefest consultation with a lawyer,” he said. “The problem is not too much process but too little.”

According to Levenson, it is not clear exactly how all this will shake out. Will defense lawyers work harder to investigate plea offers? she wondered. Will they push their clients to accept offers they might normally reject so as to avoid ineffective-assistance claims? How involved will courts and prosecutors get? See generally Laurie L. Levenson, Supreme Court's Rulings on Ineffective Assistance at Plea Bargaining Stage Call for New Efforts by Not Only Defense Counsel but Also Prosecutors and Judges, 91 CrL 139 (April 25, 2012) (noting duty to accurately convey plea offers and suggesting that prosecutors and judges will have newfound responsibilities to monitor the process).

The most obvious takeaway for defense lawyers “is probably something as simple as ‘if there is an offer on the table, make sure you tell your client about it,' ” Levenson said.

But both Levenson and Otis pointed out that the decisions are much more problematic and frustrating for prosecutors. They now have a stake in how plea bargains are communicated to the defendant, but they have no control or input in the process because they are not allowed to even know about, let alone participate, in the conversations defense counsel is having with the client, the two academics noted.

“Restoration of a pretrial offer after the trial has occurred is never a fair remedy unless the underlying problem was somehow the fault of the prosecution,” Otis said.

Pre-Katz Trespass Jurisprudence Revived

In Jones, the court announced that good old-fashioned 18th century doctrines of trespass not only remain relevant to Fourth Amendment discussions but in some instances can be determinative. According to Levenson, a former federal prosecutor, this comes as something of a surprise to lawyers raised on a steady diet of the reasonable-expectation-of-privacy test announced nearly a half century ago in Katz v. United States, 389 U.S. 347 (1967).

For years, lawyers have been trained to analyze searches purely in terms of whether they impacted a privacy interest that society would recognize as reasonable, Levenson said. Now, Jones gives defense attorneys much more room to do “creative lawyering” by weaving common law property principles into their suppression motions, she added.

In Jones, the court unanimously ruled that government agents violated the Fourth Amendment when they attached a Global Positioning System device to a suspect's car and tracked his movements without a search warrant. The court just could not agree on why this was a Fourth Amendment violation.

Five justices, in an opinion by Justice Antonin Scalia, reasoned that a warrant was required because the physical intrusion would have been viewed as a search when the country adopted the Bill of Rights. Under this property-based approach, the defendant's constitutional rights did not rise or fall on the Katz reasonable-expectation-of-privacy test, Scalia wrote.

“This is a totally new direction for the court,” Levenson observed.

Four of the justices concurred in the result but found no need to stray from the traditional Katz analysis to find a Fourth Amendment violation. Speaking for these four, Justice Samuel A. Alito Jr. argued that the common law approach was too constricted. He maintained that the search should have been struck down under the usual expectation-of-privacy test because the government tracked every movement of the suspect's car for a four-week period, which he said was clearly unreasonable.

“Society's expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalog every single movement of an individual's car, for a very long period,” Alito wrote.

Unresolved Concerns About Technology

According to Levenson, Jones is also significant for what the justices left undecided: how courts should address the expanding use of electronic tracking technology that does not implicate a physical trespass. Technological advances now allow law enforcement to track citizens through their cellphones by tracing use to a specific cell phone tower or by asking cellphone providers to engage in “triangulation,” which entails collecting and analyzing data regarding the precise time and angle at which the cellphone's signal arrives at multiple cell towers.

If the cellphone has GPS receiver hardware built into it, authorities can determine its precise location by receiving signals from global positioning satellites. See Catherine Crump, Location Tracking After United States v. Jones: Continued Uncertainty Harms Americans' Privacy, 91 CrL 577 (July 1, 2012).

Levenson observed that Justice Sonia M. Sotomayor focused on this question in her concurring opinion in Jones, which suggested it is time to re-examine the principle that Fourth Amendment protections are forfeited the instant one discloses information to third parties. “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” Sotomayor pointed out.

According to Fisher, the court clearly has some trepidation about the impact of technology on privacy and appears to be moving, albeit slowly, toward getting a handle on the problem.

“The trespass argument, including Scalia's injection of a little ‘originalism' into the analysis, was a minimalist way to resolve the case as the court continues to take baby steps in grappling with the issue of how technological advances affect the right to privacy,” Fisher said.

Lab Reports and Confrontation Rights

According to the CJLF's Scheidegger, the term's most important case for trial prosecutors was Williams v. Illinois, 2012 BL 150191, 91 CrL 357 (U.S. 2012). There the court held that the Sixth Amendment's Confrontation Clause does not require prosecutors to back up a DNA expert's “match” testimony with the testimony of the people at the crime laboratory who actually received and analyzed the samples that the police collected. “Forensic evidence is critical in modern criminal cases,” Scheidegger said.

The case demonstrates that a significant number of the justices are still not happy with the sweep of Crawford v. Washington, 541 U.S. 36, 74 CrL 401 (2004), Levenson noted. In Crawford, the court overhauled the test for gauging confrontation violations by rejecting the “reliability” test announced in Ohio v. Roberts, 448 U.S. 56 (1980), and focusing instead on the defendant's opportunity for cross-examination.

Although nominally a “win” for the prosecution, the splintered opinion in Williams was far from satisfactory because it did not establish a clear rule of law, Scheidegger said. Justice Clarence Thomas's concurring opinion reasoned that the out-of-court assertions repeated by the expert were not sufficiently “testimonial” for purposes of the Confrontation Clause because they were not “certified” or otherwise formalized statements. The rest of the justices split 4-4 on such issues as whether the statements at issue were even offered for their truth.

Otis was even more blunt: “Reasonably sophisticated people can't even tell what [Williams] holds, much less what practices it approves or disapproves going forward.”

Fisher told BNA Williams was more about tweaking the contours of Melendez-Diaz v. Massachusetts, 557 U.S. 305, 85 CrL 473 (2009), than about undoing Crawford‘s commitment to the Confrontation Clause. “Crawford is still on solid ground,” he said.

The bottom line is that the Confrontation Clause still applies to forensic evidence, but now a slim majority of the court has decided that subsidiary reports and internal work product fall outside the protection of the Confrontation Clause, Fisher said.

Moreover, he added, “Williams can be seen as a defense win because five of the justices agreed that expert witness rules don't permit the prosecution to make an end run around Melendez-Diaz.” That is critical because the reasoning goes beyond forensics and applies to other experts, “like ‘gang experts' and such,” Fisher continued.

Fisher argued both Melendez-Diaz and Crawford before the court.

Habeas Cases: Setting Up Bookends

In its review of habeas cases, the court continued to take a firm line—in a series of per curiam decisions in unargued cases—against federal circuit courts it felt had not granted sufficient deference to state courts under the standard set by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254. See, e.g., Parker v. Matthews, 2012 BL 143334, 91 CrL 334 (U.S. 2012); Cavazos v. Smith, 2011 BL 279610, 90 CrL 164 (U.S. 2011); Bobby v. Dixon, 2011 BL 286006, 90 CrL 198 (U.S. 2011); Hardy v. Cross, 2011 BL 313245, 90 CrL 358 (U.S. 2011); see also Jonathan M. Kirshbaum, Accelerating Pace of Supreme Court's Summary Reversals of Habeas Relief Suggests Impatience With Circuit Courts' Failure to Defer to State Tribunals, 91 CrL 429 (June 27, 2012) (chronicling court's trend to grant summary reversals for insufficient lack of deference).

“The recurring inability or unwillingness of federal courts to observe the legal limits on their authority suggests that further limitations on federal habeas corpus for state prisoners are needed,” said Scheidegger.

Fisher agreed that the court is continuing to take a hard line in habeas cases, but he took issue with the implication that the federal courts of appeal are heedlessly substituting their judgment for that of the state courts. “Federal judges ruling on these cases are not finding violations willy-nilly,” Fisher said. Fisher argued Greene v. Fisher, 2011 BL 286540, 90 CrL 232 (U.S. 2011), which limited the retroactive application of Supreme Court decisions on habeas review.

Levenson acknowledged that the court issued a high number of summary denials in habeas cases, but she suggested that the court is still granting relief in situations where the errors were extreme.

“I see the court setting bookends for habeas cases,” she said. On one end are the summary reversals, while on the other are cases like Maples v. Thomas, 2012 BL 12208, 90 CrL 539 (U.S. 2012), where the court reinstated a habeas petition filed by a death row inmate on the ground that he missed a filing deadline in state post-conviction proceedings only because his lawyers effectively abandoned him without notice, and Martinez v. Ryan, 2012 BL 66019, 90 CrL 805 (U.S. 2012), which held that a lawyer's inadequate assistance in a state initial-review collateral proceeding may as a matter of equity justify excusing a prisoner's procedural default on a federal habeas corpus claim of ineffective assistance of trial counsel.

Strip Searches and Gangs

The court's decision in Florence v. Bd. of Chosen Freeholders of Burlington County, 2012 BL 78215, 91 CrL 5 (U.S. 2012), to uphold routine, suspicionless strip searches of all arrestees who end up in the general jail population regardless of the seriousness of the crimes charged, came as no surprise to experts contacted by BNA.

“The decision is consistent with the court's ongoing trend to give great deference to jail and prison officials who are coping with overcrowding and safety,” Levenson told BNA. The 5-4 majority stressed, “Weapons, drugs, and alcohol all disrupt the safe operation of a jail.”

“The court recognized how difficult it is and important it is to prevent people from smuggling drugs and weapons into prison,” Scheidegger observed.

The court also sided with law enforcement in Messerschmidt v. Millender, 2012 BL 42476, 90 CrL 709 (U.S. 2012), by “continuing the trend of not micromanaging gang cases and continuing its practice of granting leniency where a warrant was obtained,” Levenson said.

The court ruled that law enforcement officers were entitled to immunity for executing an overbroad warrant to search for evidence of a gang shooting on the ground they could reasonably have believed, after consulting with their superiors and a prosecutor, that the warrant was valid.

Miranda: Show Me the Custody

The court's 6-3 ruling in Howes v. Fields, 2012 BL 42475, 90 CrL 661 (U.S. 2012), that a prison inmate was not in custody, and thus was not entitled to Miranda warnings before being questioned in a prison conference room by sheriff's deputies, did not come as a surprise either, according to the observers who spoke with BNA.

“The court is still not very comfortable with Miranda” and really would like to limit it to situations in which the degree of coercion is clear, Levenson suggested. Here, the court drew a sharp distinction between the inherently jarring and traumatic situation where a citizen is yanked from familiar surroundings and subjected to interrogation in a police station and one involving prisoners being taken from one controlled environment to another, she said.

Characterizing the case as a “clear win for law enforcement, ” Scheidegger said the result was predictable because the situation lacked any of the earmarks of coercive custody. The underpinning of the Miranda rule is the need to stop law enforcement from getting unreliable confessions through the use of coercive behavior. The police interviewers did not run the prison, did not make the rules in the prison, and could not punish the prisoner for failing to cooperate, and they told him he was free to leave, Scheidegger emphasized.

Juveniles Are Different

The court's ruling in Miller v. Alabama, 2012 BL 157303, 91 CrL 413 (U.S. 2012), that juveniles convicted of murder cannot be sentenced to a mandatory term of life without parole is really just a continuation of the court's view that “youths are different,” Levenson said. The opinion builds on Graham v. Florida, 2010 BL 109557, 87 CrL 195 (U.S. 2010), which made life without parole categorically off-limits for all juveniles convicted of a nonhomicide crime, and Roper v. Simmons, 543 U.S. 551, 76 CrL 407 (2005), in which the court categorically banned the death penalty for juveniles.

The science supports the conclusion that kids are different and that criminal justice cannot be a “one size fits all” proposition, Levenson said. See Marsha Levick, J.D.B. v. North Carolina: The U.S. Supreme Court Heralds The Emergence of the ‘Reasonable Juvenile' in American Criminal Law, 89 CrL 753 (Aug. 24, 2011) (citing a “vast body of research” indicating difference between juveniles and adults).

Otis found Miller significant because the justices declined to say that juveniles can never be sentenced to life without parole. “To the contrary, Miller did what Roper failed to do, i.e., provide for—indeed, demand—individual consideration, case-by-case,” he said.

The decision will not have that much practical impact anyway “because many of these juvenile killers would, by their violence and savagery, make Ted Bundy blush, and are going to get life without parole anyway simply because that's what the judge or jury will now impose” Otis also suggested.

Strong Endorsement of Brady

Levenson also tagged as significant the court's “short but powerful” announcement in Smith v. Cain, 2012 BL 12219, 90 CrL 446 (U.S. 2012), that evidence tending to impeach the prosecution's sole witness falls under the mandatory-disclosure rule of Brady v. Maryland, 373 U.S. 83 (1963). The court rebuffed the state's claim that the impeachment evidence was not sufficiently material because the jury would have discounted the contradictory testimony.

According to Scheidegger, this case “is about as pure a Brady claim as they come,” involving “a straightforward application of settled law to particular facts that makes little new law.”

Green agreed that Smith “breaks no new ground,” but he found it noteworthy because the lone dissenter agreed with the prosecution claim that the evidence was not likely to affect the jury's verdict.

“That suggests how vague the materiality standard is,” Green said. “One justice can find evidence to be immaterial while the rest think its significance is not even a close question. If the justices see things so differently, how can you expect a prosecutor to get it right, especially given their natural tendency to minimize the significance of evidence that doesn't fit in with their theory of the case?”

Eyewitness Credibility: Jurors Know Best

In Perry v. New Hampshire, 2012 BL 6771, 90 CrL 500 (U.S. 2012), the court held that due process does not require trial judges to independently assess the reliability of an eyewitness identification before submitting it to the jury.

Unmoved by empirical evidence that mistaken eyewitness identifications are far and away the leading cause of inaccurate convictions, the court held in an 8-1 decision that ordinary trial safeguards are sufficient even if the identification was obtained under suggestive circumstances, unless the police were responsible for creating those suggestive circumstances.

“Notwithstanding the science, the court still believes that jurors can make the right call,” said Levenson.

“Judging the reliability of evidence is the heart of the jury's function,” Scheidegger told BNA, and the court showed little interest in shifting that role to judges and making eyewitness credibility a federal constitutional issue rather than a question of evidence law.

Faith in the jury's traditional role also manifested itself in Southern Union Co. v. United States, 2012 BL 153980, 91 CrL 415 (U.S. 2012), where the court held that the Sixth Amendment jury-trial rule of Apprendi v. New Jersey, 530 U.S. 466, 67 CrL 459 (2004), applies not only to sentences of imprisonment but also to the imposition of criminal fines.

The court pointed to a long line of authority prohibiting judicial factfinding that increases maximum potential criminal sentences. Although those cases typically involved a death sentence or imprisonment, the court said, “We see no principled basis under Apprendi for treating criminal fines differently.”