The untold story of how Antonin Scalia’s ‘gift to Canada’ shaped our spy services
As Donald Trump mulls a Supreme Court successor to the conservative firebrand judge, Sean Fine examines how a young, decidedly evenhanded Scalia helped the Canadian government in the 1970s to get a grip on domestic spy agencies that had begun to spin out of control
Sean Fine has this article in The Toronto Globe and Mail:
It was the 1970s – a time when this country was reeling from revelations about out-of-control spy services. The RCMP had burned down a barn in Quebec to prevent a meeting between Quebec separatists and U.S. radicals, broken into journalists’ offices, infiltrated legitimate protest groups, stolen political-party membership lists. In 1977, the Pierre Trudeau government had set up the Royal Commission into Certain Activities of the RCMP, to be led by Justice David McDonald of Alberta. The commission offered Mr. Scalia a contract to write a report describing how the United States had confronted the notorious excesses of its own intelligence agencies, including the attempt a decade earlier to push civil-rights leader Martin Luther King Jr. to take his own life by sending him a threatening letter and an audiotape of extramarital sexual activities.
And Mr. Scalia, then in his early 40s, accepted – for the respectable, but not princely, sum of $7,500 U.S. (then worth $8,750 Canadian), based on 30 days’ work at $250 a day. The job wound up being much more onerous than he had expected: He was more than a year late delivering his report, though still in plenty of time to be useful.
The report’s scrupulously impartial (for the most part) author was not the larger-than-life figure he would one day become: a man obsessed with his own fame, and prone to scandalizing the court with his ridicule of its liberal members. (“What really astounds,” he wrote, dissenting from the 5-to-4 ruling legalizing gay marriage two years ago, “is the hubris reflected in today’s judicial Putsch.”) Here was the dispassionate, sober jurist of unmistakable power – the one who might have been. That’s the view of one of his biographers, Bruce Allen Murphy, a law professor at Lafayette College in Pennsylvania, who read the report at The Globe and Mail’s request.
Read more here.
The New York Law Journal reports:
Excluding a juror based on skin tone, like race, is prohibited under the New York Constitution, the state’s highest court has ruled [log-in required] in a case hailed by civil rights groups and affinity bar associations as an important decision.
The Court of Appeals decided unanimously that the way the jury was selected for a robbery trial in Queens Supreme Court violated the protections preventing the exclusion of jurors solely based on their race, color, creed or religion, as declared by the U.S. Supreme Court in Batson v. Kentucky , 476 US 79 (1986).
The court said in its Dec. 22 ruling that it was the first time it has explicitly stated that “race” and “color” are not the same in regards to juror bias purposes, and that a person’s dark skin tone could be a basis of cognizable discrimination under New York’s constitution and civil rights statutes.
“Defendant argues that ‘contrary to the people’s position, dark skin color is a cognizable class and, indeed, must be one unless the established protections of Batson are to be eviscerated by allowing challenges based on skin color to serve as a proxy for those based on race,’” Judge Sheila Abdus-Salaam wrote in People v. Bridgeforth, 207. “We agree with defendant.”
The case involved what the court found was the illegal exclusion of a dark-skinned woman who said she was born in India from the jury in the Bridgeforth case in 2012.
The court said Queens prosecutors gave the necessary race-neutral reasons for excluding four African-American jurors from the jury, but that the prosecutor could not remember why he also struck the Indian-born woman. The trial court did not pursue the matter further and improperly allowed the prosecutor to use a peremptory challenge to exclude the Indian juror.
Appealing his conviction, defendant Joseph Bridgeforth argued that the woman, because of her dark skin, was part of a constitutionally cognizable class that is protected under the equal protection clause, and that the prosecution’s striking of her was illegal under Batson.
The Court of Appeals reversed Bridgeforth’s conviction and ordered a new trial.
The Korematsu Center for Law and Equality at the Seattle University School of Law, which filed an amicus brief on behalf of 20 civil rights organizations and a group of 32 law school professors in the case, praised the decision.
This is not an issue that many judges confront, but when you do, it can be perplexing. The law in your state (or province) may differ, but understanding the issue is important.
Dorie Klein (St. Mary’s University School of Law) has posted The Costs of Delay: Incompetent Criminal Defendants, Involuntary Antipsychotic Medications, and the Question of Who Decides (University of Pennsylvania Journal of Law and Social Change, Vol. 16, 2013) on SSRN.
Here is the abstract:
Whether an incompetent pretrial detainee is entitled to a judicial hearing before he may be administered involuntary antipsychotic medication is a matter of contention. The question of the constitutionality, with regard to the Due Process clause, of involuntary medication to diminish a detainee’s dangerousness is one that arises at the intersection of two United States Supreme Court cases, Washington v. Harper and Sell v. United States.
In Harper, the Court ruled that a convicted prisoner is not entitled to a judicial hearing before he may be administered involuntary antipsychotic medications when the medications are necessary to diminish the prisoner’s dangerousness to himself or others. In Sell, the Court implied that an incompetent pretrial detainee is entitled to a judicial hearing, when the medications are necessary to render the detainee competent to stand trial.
In either case, the decision whether to allow the government to administer involuntary antipsychotic medications should be made as quickly as possible, and for that reason, medical personnel should decide. Moreover, the Sell Court’s decision requiring a judicial hearing is ineffective in protecting those interests of detainees that the Court thought would be protected by a judicial hearing. Given the nature of antipsychotic medication, requiring a judicial hearing on the question of involuntary antipsychotic medications is unlikely to protect the detainee’s interest in a fair trial. Furthermore, the delay involved in the judicial process harms the detainee’s health and compromises the government’s interest in rendering the detainee competent to stand trial. Thus, mandating that only a judge may authorize involuntary antipsychotic medications costs both the detainee and the government, and benefits no one.
A California Appeals Court has ruled that an officer’s failure to knock-and-announce (really, to wait long enough) before entry does not invoke the exclusionary rule under Michigan v. Hudson. People v. Byers, 2016 Cal. App. LEXIS 1087 (4th Dist. Dec. 14, 2016):
The knock-notice requirement “is not easily applied.” (Hudson v. Michigan (2006) 547 U.S. 586, 589 (Hudson).) “[I]t is not easy to determine precisely what officers must do. How many seconds’ wait are too few? Our ‘reasonable wait time’ standard [citation], is necessarily vague.” (Id. at p. 590.) “[W]hat constituted a ‘reasonable wait time’ in a particular case, [citation] (or, for that matter, how many seconds the police in fact waited), or whether there was ‘reasonable suspicion’ of the sort that would invoke the Richards exceptions, is difficult for the trial court to determine and even more difficult for an appellate court to review.” (Hudson, at p. 595.)
In Hudson, the Supreme Court held that the exclusionary rule is not the appropriate remedy for a violation of the knock-notice requirement. (Hudson, supra, 547 U.S. at pp. 590, 599.) In part, this is because the exclusionary rule and the knock-notice requirement serve different purposes. The exclusionary rule protects against unlawful warrantless searches. (Id. at p. 593.) The knock-notice requirement, in contrast, seeks to prevent violence (due to an inhabitant being taken by surprise), property destruction (e.g., of a door), and loss of an occupant’s privacy and dignity (caused by an outsider’s sudden entry). (Id. at p. 594.) When officers have a search warrant, the knock-notice requirement is not intended to prevent “the government from seeing or taking evidence described in [the] warrant.” (Ibid.) Similarly, when a search is conducted pursuant to an absent co-tenant’s consent, the purposes of the knock-notice requirement (Duke, supra, 1 Cal.3d at p. 321) do not include preventing law enforcement from seeing or seizing evidence pursuant to the consent exception. Furthermore, the exclusionary rule is applicable only “‘where its deterrence benefits outweigh its “substantial societal costs . . . .”‘” (Hudson, at p. 591.) The costs of recognizing the exclusionary rule as a remedy for knock-notice violations would include the release of dangerous criminals into society, inordinate wait times before entry and consequent destruction of evidence, and a “constant flood of” litigation about hard-to-apply standards such as what is “a ‘reasonable wait time’” or whether officers had a “‘reasonable suspicion.’” (Id. at p. 595.) These substantial societal costs outweigh the knock-notice requirement’s minimal deterrence value (id. at p. 596), especially because an officer’s violation of the rule is deterred by the risk of civil suit and/or internal police discipline (id. at pp. 597-599).
In April 2016, the Connecticut Supreme Court was asked whether police should be permitted to use a drug-sniffing dog to roam the hallways of an apartment or condominium complex to search for contraband without getting a warrant from a judge. Recently, they emphatically answered no.
With the opinion in State v. Dennis Kono, Connecticut now joins a small but growing group of jurisdictions that have extended the robust protections of privacy in the home to apartments. In so holding, the Court answered two important questions: should the police’s power to search a person’s residence be any different depending on whether the residence is an apartment, condominium or free-standing house; and should the search for contraband outweigh any Fourth Amendment rights we have as citizens? [Read more here.]
To be sure, not all courts agree with the Connecticut Supreme Court, but the 7th Circuit Court of Appeals issued an opinion in an almost identical case, United States v. Whitaker. In that case, the issue was the same: should warrantless use of a drug-sniffing dog in an apartment hallway be permitted under the Fourth Amendment. The court said no:
The use of a drug-sniffing dog here clearly invaded reasonable privacy expectations, as explained in Justice Kagan’s concurring opinion in Jardines. The police in Jardines could reasonably and lawfully walk up to the front door of the house in that case to knock on the door and ask to speak to the residents. The police were not entitled, however, to bring a “super-sensitive instrument” to detect objects and activities that they could not perceive without its help . . . The police could not stand on the front porch and look inside with binoculars or put a stethoscope to the door to listen. Similarly, they could not bring the super-sensitive dog to detect objects or activities inside the home.
There still exists a belief among certain lawyers that an expert’s opinion must be struck unless the expert recites magic language stating the opinion is to a reasonable degree of (insert field) probability.
The topic arose again in Singletary v. Lee, a dental malpractice case. In that case, the jury found for the patient, but the district court granted judgment as a matter of law. On appeal, a panel of the Supreme Court reversed. “The district court determined that the dental expert’s testimony should have been stricken as inadmissible because the expert did not use the phrase ‘to a reasonable degree of medical probability’ in rendering his opinion on the standard of care following a tooth extraction.” In other words, the expert’s opinions were unreliable because the expert did not recite ritualistic language. This was incorrect. “While medical expert testimony regarding standard of care must be made to a reasonable degree of medical probability, there is no requirement that the specific phrase ‘reasonable degree of medical probability’ must be used by the expert in their testimony.” Proper evaluation of the expert’s testimony should have focused on “the nature, purpose, and certainty of the dental expert’s testimony rather than whether he uttered a specific phrase.”
The Nevada Supreme Court then reviewed the expert’s testimony. He “did not use speculative, hypothetical, or equivocal language. Appellant’s expert provided a definitive opinion as to the standard of care….” This was sufficiently certain to make the testimony reliable.
For the full opinion, go here (log-in required.)
A case can be made that indigent defense is not in acceptable shape in many states. Surely New York would be one of those states where the delivery system has weaknesses. There has been litigation and, more recently, there was, in response to the litigation, a legislative attempt to respond to the litigation. But, The New York Law Journal reports:
Gov. Andrew Cuomo vetoed a bill that would have provided for an eventual state takeover of indigent criminal legal defense costs now paid by New York City and counties outside the city.
The localities have come to shoulder most of the burden for the indigent representation in New York state since the Supreme Court’s decree in Gideon v. Wainwright, 372 U.S. 335, that having access to an adequate defense against criminal charges is a constitutional guarantee.
The state currently pays about $80 million toward indigent legal defense and New York City and the 57 counties outside the city about $360 million.
The bill before Cuomo (A10706/S8114) provided for a phased-in, seven-year state takeover of the localities’ costs by 2023.
Cuomo said in his veto message that the measure was too expensive. He contended it could obligate the state to pick more than $800 million each year when fully implemented. He contended that the bulk of those costs would come in Family and Surrogate court representation and in other areas unrelated to the defense of indigent criminal defendants.
Cuomo said the potential enormity of the state’s obligation would undermine the financial stability he has tried to bring to the state since becoming governor in 2011.
“We cannot use Gideon as a ploy for financial redistribution of existing local expenses that have nothing to do with Gideon,” he said in his veto message. “Rather, the bill functions as a simple cost shift to [state] taxpayers, proven by the fact that there is absolutely no funding system to pay for it.”
He noted that his administration’s settlement of a case in the fall of 2014, Hurrell-Harring v. State of New York, 8866-07, established a more limited template of state oversight of the criminal defense systems in the five defendant counties of Suffolk, Washington, Onondaga, Ontario and Schuyler (NYLJ, Oct. 22, 2014).
Among the most thoughtful commentators is Adam Liptak. He recently had an insightful piece in The New York Times that begins:
Corey Statham had $46 in his pockets when he was arrested in Ramsey County, Minn., and charged with disorderly conduct. He was released two days later, and the charges were dismissed.
But the county kept $25 of Mr. Statham’s money as a “booking fee.” It returned the remaining $21 on a debit card subject to an array of fees. In the end, it cost Mr. Statham $7.25 to withdraw what was left of his money.
The Supreme Court will soon consider whether to hear Mr. Statham’s challenge to Ramsey County’s fund-raising efforts, which are part of a national trend to extract fees and fines from people who find themselves enmeshed in the criminal justice system.
Kentucky bills people held in its jails for the costs of incarcerating them, even if all charges are later dismissed. In Colorado, five towns raise more than 30 percent of their revenue from traffic tickets and fines. In Ferguson, Mo., “city officials have consistently set maximizing revenue as the priority for Ferguson’s law enforcement activity,” a Justice Department report found last year.
An unusual coalition of civil rights organizations, criminal defense lawyers and conservative and libertarian groups have challenged these sorts of policies, saying they confiscate private property without constitutional protections and lock poor people into a cycle of fines, debts and jail.
The Supreme Court has already agreed to hear a separate challenge to a Colorado law that makes it hard for criminal defendants whose convictions were overturned to obtain refunds of fines and restitution, often amounting to thousands of dollars. That case, Nelson v. Colorado, will be argued on Jan. 9.
The Colorado law requires people who want their money back to file a separate lawsuit and prove their innocence by clear and convincing evidence.
The sums at issue are smaller in Ramsey County, which includes St. Paul. But they are taken from people who have merely been arrested. Some of them will never be charged with a crime. Others, like Mr. Statham, will have the charges against them dismissed. Still others will be tried but acquitted.
It is all the same to the county, which does not return the $25 booking fee even if the arrest does not lead to a conviction. Instead, it requires people like Mr. Statham to submit evidence to prove they are entitled to get their money back.
When the case was argued last year before the United States Court of Appeals for the Eighth Circuit in St. Paul, a lawyer for the county acknowledged that its process was in tension with the presumption of innocence.
The complete article is here.
Courts throughout the nation are now dealing with the emerging law of body cameras. What about the inevitable issue of discovery? How do we deal with incompatible devices? What if the body camera does not work, malfunctions, or intentionally is turned off (or not turned on)?
In a recent case, the officer testified that his body armor accidentally muted the microphone on the body recorder on his belt when he bent over. Should the court respond by suppressing the evidence, dismissing the charge, or doing something in between? At least one court has held that this was not a due process violation, as there was an exigency for a community caretaking function entry based on a loud argument inside and the officer being invited in. United States v. Givens, 2016 U.S. Dist. LEXIS 167433 (W.D. Mo. Nov. 18, 2016), adopted, 2016 U.S. Dist. LEXIS 167140 (W.D. Mo. Dec. 5, 2016):
Defendant argues that it was a violation of Department of Justice and Kansas City Police Department protocol not to use the body recorder during the entire incident (referring to the 10 to 12 minutes that are missing on the recording) and this violates his Fifth Amendment rights.
Violation of Department of Justice or Kansas City Police Department protocol does not create any rights on behalf of a criminal defendant. See United States v. Kubini, 19 F. Supp. 3d 579, 619 (W.D. Pa. 2014) (provisions in U.S. Attorney’s Manual do not create enforceable rights); United States v. Gomez, 237 F.3d 238, n.1 (3rd Cir. 2000) (provisions of U.S. Attorney’s Manual do not create any judicially enforceable rights); United States v. Jarrett, 447 F.3d 520, 529 (7th Cir. 2006) (case law, not internal handbooks, provides the guidance for whether rights have been violated); United States v. Gross, 41 F.Supp.2d 1096, 1098 (C.D. Cal. 1999) aff’d 40 Fed. Appx. 397 (9th Cir. 2002) (US Attorney’s Manual did not create enforceable rights).
Officer Lightner testified that his body microphone was accidentally muted when his vest pushed the mute button as he was getting out of his patrol car. This did not violate any of defendant’s rights.
. . .
Here, the uncontroverted evidence is that the officers were called to the residence on a disturbance; when they arrived they heard loud arguing coming from within the residence; when Sonya Wiggins saw them approaching the residence, she began waving for them to come in; Ms. Wiggins yelled that someone had a gun; when the officers entered the residence, they heard a metal clinking sound which they believed to be the sound of a gun being dropped into a metal sink; Ms. Wiggins was yelling that he had a gun and was trying to hide it in the sink; there were other people present besides defendant and Ms. Wiggins; and the officers did not yet know the circumstances of the disturbance which prompted the call for help to the police other than hearing loud arguing and a female screaming that a male had a gun. I find that a reasonable officer would have believed that an emergency was at hand. Therefore, the entry into the residence was lawful, and the search of the sink for the gun was lawful pursuant to the community caretaking function of the police.
There was a time when many states had non-lawyer judges. Our nation had a need for someone to hear minor cases and there simply were not enough lawyers or lawyers willing to do that kind of work. Non-lawyer judges often hear small claims matters. They perform marriages. They hear traffic cases and often hear minor criminal cases.
There are over 6,000 Justices of the Peace and Magistrate Judges in the country. States with Justices of the Peace include Arizona, Delaware, Louisiana, Mississippi, Montana, Nevada, New York, Oregon, Texas, and Utah. States with Magistrate judges are Alaska, Delaware, Georgia, Idaho, Iowa, Kansas, North Carolina, Oregon, Rhode Island, South Carolina, Vermont, West Virginia, and Wyoming. In 1974, a unanimous California Supreme Court held that it was a violation of the federal right to due process under the Fourteenth Amendment to allow a non-lawyer justice to preside over a case that could result in jail time. Gordon v. Justice Court, 525 P2nd 72 (1974).
How about the rest of the nation? Should non-lawyer judges be able to jail? The law now permits lay judges to convict defendants of jailable offenses in misdemeanor courts so long as the defendants have an automatic right to a new trial in front of a judge who is a lawyer. But, the Supreme Court is considering a Montana case that raises the question of what happens when that automatic “do-over” trial isn’t guaranteed.