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.)

Stop, Frisk, and Miss

By David K. Shipler

            On a warm night some summers ago, a wiry sergeant named G. G. Neill and his “power shift” of police officers pulled their four marked squad cars into a somber, impoverished block in Southeast Washington, D.C. Six cops got out, none of them undercover. They were in uniform because they wanted to see what young black men hanging out on a street corner would do when the law appeared. Neill believed that telltale reactions would often betray a person who was concealing a gun.

            The armed man’s buddies, hanging out, might all turn to look at him. He might walk quickly away. He might turn one side away from the cops, lean against a car, hold his girlfriend tightly on his weapon side, or repeatedly touch his waistband to be sure the gun is securely in place. His clothes might be too bulky for the weather, or an ill-fitting jacket would hang lopsided, as if weighed down by something heavy in a pocket.

            This time in this block, however, and in many others during the deep nights when I traveled parts of the nation’s capital with the unit, the young black men did nothing suspicious. That didn’t prevent them from being searched. Some were so used to the cops coming around that they pulled up their T-shirts, without being asked, to show they had nothing stuck in their belts. They were as casual as passengers removing their shoes at airport security. Others allowed themselves to be patted down with no overt objections except for the smoldering looks in their eyes. They raised their arms so the cops could run their hands up and down their bodies and between their legs, then squeeze their pockets.

            This is the sorry state of the Fourth Amendment in the nation’s heavily black neighborhoods. The Framers carefully crafted the protection of “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” But that right, which is not to be overcome unless probable cause exists that evidence of a crime will be found, has been shredded by the war on drugs, the war on street violence, and most recently the war on terrorism. Wars, whether actual or metaphorical, do not comport well with individual liberties.

Surveillance: Edward Snowden's Wishful Thinking

By David K. Shipler

            To risk all by being a whistleblower, you have to believe deeply in your society’s capacity for self-correction, and Edward Snowden—after periods of doubt—is a believer, it seems. Last week he hailed “the power of an informed public” in driving Congress to make modest trims in the National Security Agency’s authority to collect data on Americans’ electronic communications. This is the way an open democracy is supposed to work: expose the wrongdoing and provoke reform.

But before we celebrate with embarrassing rhapsodies, let’s remember how far the United States has to go. The 9/11 trauma has not yet healed, and the post-traumatic security measures—some sensible, others excessive—have compromised the Fourth Amendment’s guarantee of the people’s right “to be secure in their persons, houses, papers, and effects.” Many of the extreme methods of intrusion remain intact. Some have proved worse than useless, overloading intelligence professionals with terabytes of distracting information that’s hard to search and sift for the ominous patterns of incipient terrorism.

So there are both practical and ideological reasons to abandon the excesses, yet they seem likely to stay largely in place until several conditions develop.

If earlier spasms of anxiety in American history are any guide, violations of constitutional rights in the interest of national security come to an end when, a) they are so egregious that their disclosure inflames the public; b) the perceived threat diminishes; and/or c) courts find the measures illegal or unconstitutional. Early signs of each of these can be seen, but only as slight beginnings of what may become significant trends.

DNA: The Tilted Supreme Court

By David K. Shipler

             Four years ago, the Supreme Court ruled 5-4 that people who proclaim their innocence have no constitutional right after their convictions to demand that DNA tests be done on the evidence in their cases, although plenty of guilty verdicts for rape and murder have been thrown out because mismatches have later been discovered. Yesterday, the Court ruled 5-4 that people arrested for “serious” crimes have no constitutional right to withhold their DNA from the police, even though the DNA is used for fishing expeditions into unsolved crimes unrelated to the reasons for the arrests.

Together, the two rulings create a tilted playing field in the criminal justice system: The individual is compelled, but the state is not. Anyone taken into custody (and presumed innocent) is compelled to give up his DNA at the outset but after conviction cannot compel prosecutors to give up the DNA found in the semen, blood, or other tissue from the crime scene.

The prosecutors’ obligations to test evidence for DNA rest in a variety of state laws, the Court decided in 2009, not in the Constitution’s guarantee of due process or the defendant’s right to summon “witnesses in his favor,” as the Sixth Amendment provides. The state laws are a mixed bag, and not always much protection; some deny convicts’ right to DNA if they confessed, although about one-quarter of the convictions reversed on the basis of DNA evidence involve false confessions, the Innocence Project reports.

The odd result is that the Court finds DNA the quintessential identifier in one ruling and a dispensable piece of evidence in the other. It is critical when it serves the state and merely optional when it serves the individual. This hypocrisy is mirrored by many prosecutors across the country who hail the precision of genetic coding to discover the criminal, yet resist its use to exonerate the wrongly convicted.

The inconsistency, the failure to bolster the system’s truth-seeking purpose, is reflected by the most colorful Justice, Antonin Scalia, who has been on both sides of the question. He joined the majority in the 2009 decision denying convicts the right to test crime-scene evidence, but in the latest case, Maryland v. King, he blustered sardonically in an entertaining dissent against the majority’s decision to uphold the Maryland law—which had been struck down by the state’s Supreme Court—requiring DNA to be taken without a warrant after an arrest. He warned of sweeping consequences, and he may be right.

Courts usually proceed incrementally, each decision building on precedent, and with DNA collection now approved for those arrested and presumed innocent, it will be a smaller step to wider use, as Scalia noted. DNA is a tool of infallible identification, after all. Why not require it for a driver’s license, for passing through airport security, for enrolling in public school? If lab techniques improve to speed up processing and reduce cost, a national database containing everyone’s DNA will someday be conceivable, and probably less constitutionally dubious than before this ruling. 

That cuts a chunk out of the Fourth Amendment’s provision for “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Taking a swab from inside a person’s cheek is a “search” under the Fourth Amendment, both sides agreed, and the majority found it reasonable. The trouble is, under judicial precedent a search normally requires individualized suspicion to a degree that depends on the circumstances—to search your home, for example, requires probable cause and a warrant signed by a judge; to frisk you without a warrant as you walk down the street requires a police officer’s “reasonable suspicion” that you are armed.

The Fourth Amendment has been chipped away as more and more suspicionless searches have been allowed by the Court, often with Scalia’s acquiescence: He voted for random drug tests of children in school choirs and other extra-curricular activities, for instance. The erosion has been helped along by the supposedly liberal Justice Stephen Breyer, who puzzled some commentators by joining with the majority on taking DNA after arrests. But nobody should be confused. Breyer has never been a big defender of the Fourth Amendment. He also endorsed suspicionless drug testing of schoolchildren, which prompted the plaintiff who lost, Lindsay Earls, to challenge him politely several years later. When Breyer visited Dartmouth, where she was then a junior, she asked whether justices ever recognized that they’d made a mistake. Yes, Breyer answered, “but not in your case.”

The Fourth Amendment was written as a bulwark, but it has proved a fragile restraint in an age of easy digital surveillance, biometric advances, and sweeping concerns about crime and terrorism. “I don’t think that there’s much left of the Fourth Amendment in criminal law,” Federal District Judge Paul L. Friedman told me several years ago—a startling statement from a respected judge who presides over drug and gun trials.

So behind this fading shield, DNA is a double-edged sword, useful to prosecutors and defendants alike—provided they can both wield it equally. In the small fraction of crimes where DNA is available, it is a marvelous tool for getting to the truth and reducing errors, for identifying the rapist and murderer, and for freeing the innocent.

But that won’t work if the DNA database contains evidence from only unsolved crimes. If we’re going to check all arrestees’ DNA, we also need a database of evidence from crimes we think we’ve solved, so that erroneous convictions can be uncovered. The law enforcement officials celebrating yesterday’s ruling would earn some integrity by pledging to establish such a resource. 

Civil Liberties: Liberals Give Obama a Pass

By David K. Shipler

Published at Salon.com Nov. 3, 2012

Let us stipulate, as lawyers like to say, that President Obama has a deplorable record on civil liberties, one that threatens long-term damage to the country’s constitutional culture.

Why, then, has his base of support not been eroded decisively? Why have so many on the left fallen silent, after railing against George W. Bush’s rights violations, as Obama has prolonged and codified most of the same practices? And why have so few on the right, riding a groundswell of resentment toward big government, failed to resent the biggest governmental intrusions into personal privacy since the FBI’s domestic spying during the Cold War?

Legalizing Drugs Would Bolster Constitutional Rights

By David K. Shipler

If Secret Service agents hadn’t infatuated the American press last weekend by cavorting with prostitutes in Colombia, there might have been space and time for newspapers and broadcasters to dwell on a more significant event that took place, also behind closed doors, at the Latin American summit. It was the discussion about partially legalizing narcotics to undermine the lethal drug cartels that have turned parts of the hemisphere into war zones.

This is not about to happen, obviously. As a politician in an election year, President Obama naturally rejected the idea. But the leaders—pushed by President Juan Manuel Santos of Colombia, President Felipe Calderon of Mexico, and President Otto Perez Molina of Guatemala—did order up a study by the Organization of American States. Desperation about drug violence has driven the decriminalization proposal to the highest levels of certain governments.

The arguments for and against legalization are familiar, but there is one in favor that has rarely been made: The war on drugs has also been a war on the U.S. Constitution, especially the Fourth Amendment’s guarantee of “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

The Secret Service As Thought Police

By David K. Shipler

A case of security vs. speech, before the Supreme Court for oral argument today, may set important standards for law enforcement agents who make misjudgments in the heat of the moment. As usual on matters of civil liberties, the Obama Administration is on the wrong side.

Under President Obama’s predecessor, the Secret Service was mobilized to suppress political speech. To create glowing television portrayals of President George W. Bush wherever he spoke, White House staffers screened out people wearing anti-Bush T-shirts, had the Secret Service expel them from public presidential events, and even cruised parking lots looking for hostile bumper stickers so the cars’ occupants could be turned away once they reached the door. The Secret Service, which is supposed to protect the president from physical harm, protected him from political dissent as well, by instructing local police to restrict demonstrators to distant “free speech zones,” usually out of sight of both the president and the cameras.

Counterterrorism: Legalizing Illegality

By David K. Shipler

You may have noticed a pattern in counterterrorism since 9/11. First, the executive branch violates the law, provoking an uproar of outrage, and then Congress changes the law to permit the violations. This has happened several times in the last decade, most recently in the National Defense Authorization Act’s mandate that suspected terrorists be imprisoned by the military, possibly indefinitely. President Bush started doing just that without clear legal authority, locking up three U.S. citizens in military jails until the courts intervened. Instead of acting to prevent a recurrence, Congress has now codified this extraordinary power.

The peculiar dynamic here is very different from the one seen in the 1970s, after the FBI and other federal agencies illegally spied on civil rights and antiwar groups.

Big Father: The Government as Parent

By David K. Shipler

When President Obama endorsed the decision to overrule good science and put Plan B contraceptives beyond the reach of girls without doctors’ prescriptions, he cited his role “as the father of two daughters.” It was a revealing remark, because this was not the first time that government had played an immoderate part in family life—not quite Orwell’s Big Brother, but something of a Big Father, taking over a task that rightly belongs to parents to choose how to raise and guide and converse with their child.

It is conservatives, the supposed champions of limited government, who most often want government to act like Big Father. In Tecumseh, Oklahoma, parents got the public high school to do random drug testing after a mother discovered her son and friends using drugs in her house. She and other parents couldn’t cope with their own children. In Stockton, Missouri, a father enlisted a conservative pastor to get the public high school to remove a popular and powerful book, about an American Indian facing racism and poverty, because of a brief passage extolling masturbation. Some parents, unable to talk with their kids about sex, are relieved to shift the burden to the school, or to see the topic erased altogether from available readings.

Extreme Measures

By David K. Shipler
(Published in the American Prospect, Sept. 2011)
The abuse of the Constitution that followed September 11, 2001, was neither surprising nor inevitable. It was not a surprise, because it wasn’t the first time in American history—but the sixth, by my count—that fundamental rights had been violated during spasms of fear over national security. It was not inevitable, because prominent voices might have called the country back to its principles. There is no telling whether such appeals would have stood against the tide, but one man’s words did make a difference in the emergency command center at FBI headquarters on Pennsylvania Avenue several hours after the attacks.
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The Mosaic Theory

By David K. Shipler
(published on the Web site of the American Constitution Society)

The Supreme Court has an opportunity next term to play catch-up in applying the Fourth Amendment to the advanced technology of surveillance. The Court has granted the Obama administration’s cert. petition seeking to overturn a well-reasoned opinion by the Court of Appeals for the D.C. Circuit requiring law enforcement to obtain warrants when secretly installing GPS tracking devices on vehicles.

This could be a mundane case or a landmark, depending on which way the justices go.

Free to Search and Seize

By David K. Shipler
(published on The New York Times Op-Ed page June 23, 2011)

THIS spring was a rough season for the Fourth Amendment. The Obama administration petitioned the Supreme Court to allow GPS tracking of vehicles without judicial permission. The Supreme Court ruled that the police could break into a house without a search warrant if, after knocking and announcing themselves, they heard what sounded like evidence being destroyed. Then it refused to see a Fourth Amendment violation where a citizen was jailed for 16 days on the false pretext that he was being held as a material witness to a crime.