The Criminal Justice of Amy Coney Barrett, Part Two

 

By David K. Shipler 

                The newest Supreme Court Justice, Amy Coney Barrett, writes much better than most of her new colleagues, and she knows how to tell a story. In the area of criminal justice, including defendants’ and prisoners’ rights, she begins each opinion with a narrative vivid enough for a crime writer to treat as a synopsis for a novel. And her rulings, founded on clear legal argument, are hard to categorize along a liberal-conservative spectrum. She stands willing to decide against police, prosecutors, and trial judges when she sees the facts and the law demanding as much.

                That was her record during three years on the 7^th Circuit Court of Appeals. But she was restricted by the precedents of earlier rulings by her circuit and the Supreme Court. In many cases, she wrote for unanimous three-judge panels that included two liberals who surely had significant influence over the shape of the opinion. The highest court’s culture with a conservative majority will be different. Its authority to reinterpret the law and the Constitution exceeds that of appeals courts. With such license, she could shift to the right in cases involving the Fourth Amendment, for example, where she has been fairly tough on law enforcement. On the other hand, as a supporter of the Second Amendment right to own firearms, she gives close scrutiny to police searches that turn up guns and to sentence enhancements for gun possession.

                Following are several of her most interesting opinions that were described more briefly in Part One:

                United States v. Watson—“The police received an anonymous 911 call from a 14-year-old who borrowed a stranger’s phone and reported seeing ‘boys’ ‘playing with guns’ by a ‘gray and greenish Charger’ in a nearby parking lot.” The caller said the “boys” were black. “A police officer then drove to the lot and blocked a car matching the caller’s description. The police found that a passenger in the car, David Watson, had a gun. He later conditionally pleaded guilty to possessing a firearm as a felon.”  Watson then moved to suppress the gun evidence as the fruit of an unconstitutional search.

                 Under the Supreme Court’s application of the Fourth Amendment dating from Terry v. Ohio in 1968, Barrett noted, “an officer cannot stop someone to investigate potential wrongdoing without reasonable suspicion that ‘criminal activity may be afoot.’” She also cited later cases spelling out factors justifying reasonable suspicion, including a particularized and objective basis for suspecting a certain individual of a specific crime. Reasonable suspicion is a lower bar than the “probable cause” required to get a search warrant from a judge. A warrantless search also requires urgency, in that a pedestrian or a driver could depart with evidence before a warrant could be issued.

In Watson’s case, the police claimed that blocking the car and doing the search were justified under those rules. Barrett quoted the first officer as describing the neighborhood as a heavy crime area and worrying that if there were “three or four guys displaying weapons, they might [be] about to shoot somebody.” A second officer said, “any time you have males with weapons, there’s always a sense of urgency ‘cause anything could happen.”

But Barrett found precedents derogating the reliability of anonymous tips in establishing reasonable suspicion. Furthermore, she declined to apply a Supreme Court precedent granting a 911 call considerable credibility because here, she observed, it came from a borrowed phone by a boy whose identity was unknown and could probably not be traced. Furthermore—the clincher—“his sighting of guns did not describe a likely emergency or crime—he reported gun possession, which is lawful.” Her panel suppressed the evidence and vacated the judgment.

The Criminal Justice of Amy Coney Barrett, Part One

 

By David K. Shipler 

             For all the close scrutiny of soon-to-be Supreme Court Justice Amy Coney Barrett’s writings on the hot-button issues of abortion rights, gun rights, and Obamacare, little attention has been paid to her rulings on the rights of criminal defendants and prisoners. She has issued opinions in thirty-four such cases and signed on to other rulings in her three years on the 7^th Circuit Court of Appeals, a rather thin record, yet one demonstrating a willingness to rule both for and against police, prosecutors, and trial judges.

At times she conveys compassion for the convicted and a robust regard for the Fourth Amendment’s restrictions on the police power to search. She is occasionally willing to strip officers of their “qualified immunity” from lawsuits. But she can also adopt extremely narrow interpretations of legal language to uphold questionable convictions and heavy sentences.

           In the general area of criminal justice and related civil suits, she has issued only five dissents—four going against inmates and defendants and one arguing that a non-violent felon should be allowed to own firearms, which current federal law prohibits. In another dissent, in Sims v. Hyatte, she opposed the exoneration of a man whose attempted murder conviction relied entirely on his identification by the victim, who turned out to have been hypnotized before his trial testimony—a fact not disclosed to the defense. Two of the three judges overturned the conviction, and the man was released after twenty-six years in jail.

Otherwise, she has written for unanimous three-judge panels, putting her in the mainstream of her court. It is fair to say that most of her opinions in criminal cases have been slam dunks, not even close calls given the facts and the precedents. Some appeals that reached her court seemed like stretches by defense attorneys; others exposed such egregious behavior by authorities that a contrary ruling would have shocked the conscience. (More detailed descriptions of key cases will appear next week in the second part.)

Trump Reveals America

                                                         By David K. Shipler 

Michelle Obama has observed that being president does not change who you are. It reveals who you are. The same could be said of the nation: that its president does not change who we are but reveals who we are. And what Donald Trump has revealed about America has taught us sobering lessons about ourselves.

                The United States is a highly segregated society, not only by race and class but also by politics. So little respectful conversation occurs across political lines, so few circles of friendship contain citizens of differing views, that many Americans have remarked in these last four years on how little they understood their own country.

                What has been uncovered is shocking and worrisome, but it can also be constructive if the revelations inspire a curriculum for self-improvement. The test of any society, its capacity for self-correction, has been passed by the United States repeatedly, if erratically, over two and a half centuries. Win or lose next month, Trump will have presented the country with its next challenges. Here are some of the major lessons: 

                1. The Fragility of Democratic Values. When Trump refuses to commit to a peaceful transfer of power if he loses the election, he should be instantly disqualified in the mind of every American citizen who understands that nonviolent transition is the linchpin of democracy, setting free societies apart from dictatorships. No president of the United States has ever before raised such a question about this hallowed principle. He was finally dragged into a begrudging “yes, I will” under tough questioning at last week’s televised town hall, then seemed to add a condition: “But I want it to be an honest election.” He attacked its honesty in advance with fabricated stories of discarded and altered ballots. No president of the United States has ever before campaigned against the legitimacy of the electoral process. And while impediments to voting have plagued this democracy since its founding, the Republican Party’s national strategy to silence the people’s voices through myriad means ought to be cause enough for alarm and rejection.

That Trump’s dismissal of democratic norms has not decimated his support suggests that some 40 percent of Americans who still register their approval have blind spots to the essentials of a pluralistic political system. They seem either not to recognize the threats it can face or not to value it in the first place. The lapses extend into the Republican establishment. “Democracy isn’t the objective; liberty, peace, and prosperity are,” Republican Senator Mike Lee of Utah tweeted on October 8. “We want the human condition to flourish. Rank democracy can thwart that.” Does it need to be said that liberty cannot be preserved without democracy? Evidently so.