Sure, Maybe in Texas

From Liberty and Justice for Y'all comes this story of what happens when a cop's just too darned sensitive of the feelings of others.
See there was this traffic stop.  Actually, there were two.  First, Officer Duncan pulled over Joseph Newman for driving with a bad tail light.  Duncan saw "a bottle of pills" on the console, but warned Newman and let him go.  About 4:30 a.m., Duncan pulled Newman over again for the tail light.  (You'd think he could have found a 2 a.m. repair shop.)  This time, Newman had three passengers, but the pills were gone.
So Duncan stops the car, the front seat passenger jumps out and runs into a convenience store.  (To escape? To use the john? To buy a Dr. Pepper?)  Duncan searches Newman, finds drugs, and arrests him.  Duncan then turned his attention to Lavetta Renee Williams, sitting in the back, passenger side.  Williams was apparently minding her own business.  She didn't try to run off, didn't make any furtive gestures, didn't mouth off.  I mean, how suspicious can you get?  But the real problem with Williams (who Duncan knew had drug complaints and a "violent temper," is that Newman, once he was arrested, told Duncan that Williams had a knife and was threatening to stab the others.
So Duncan gets the others out of the car.  By now there are other cops around, one female, all there to assist.  And there's this potential knife.  

OK, here's the deal.  A police officer who has reasonable suspicion (which is less than probable cause, which, you'll recall, is itself less than probably but means something like "not impossible") to believe a suspect is armed and dangerous can conduct a pat-down search of the suspects outer clothing to check for a weapon.
So there they all are, by the side of the road.  And it's Duncan's job to pat down Lavetta.  (Why, you may ask?  Why not have the female officer do it? Because we wouldn't have a story then.)  Anyway, according to yesterday's opinion by Justice Brown of the Fourteenth Court of Appeals (Houston)

Officer Duncan testified that he did not want to conduct a pat-down of Williams because she was a female. He stated that he asked Williams to "kind of reach underneath [her bra] and just pull it out a little bit and kind of shake it a little bit . . . and maneuver it." Because Williams was relatively well-endowed—"more than average"—Officer Duncan was concerned she may have concealed the steak knife in her bra. Williams "refused, cried, and said she did not want to pull out her bra." Officer Duncan again asked Williams to shake out her bra. After the second request, Williams complied and numerous pills fell out of her bra. Officer Duncan arrested Williams for possession of a controlled substance. After she was arrested, the female officer on the scene conducted a pat-down of Williams.

And so it is that the local trial court said, NO.  That search was too much.  Suppress those drugs!  And per Justice Brown, the court of appeals said that was right.

Officer Duncan‘s reluctance to perform a pat-down on a female provides insufficient justification for broadening the scope of the search, especially when a female officer was on the scene and immediately available to conduct the pat-down in his place. Having the female officer perform the pat-down would neither compromise officer safety nor expose Williams to an overly broad search. Besides, we are aware of no authority prohibiting a male officer from patting down a female suspect, nor has the State pointed to any such authority.

The state offered bunches of justifications for not suppressing those drugs.  But Brown (and Justice Boyce, who joined his opinion) bought none of them.  They just couldn't get past this.
Additionally, although Officer Duncan had been told that Williams had a knife, he was not told, nor was there any other indication, that Williams had hidden the knife in her bra. Furthermore, there is nothing to show that a pat-down would have been dangerous or ineffective. Officer Duncan stated that he did not want to pat-down a female, but the State has not cited any authority to show that he was therefore justified in conducting a more intrusive search. And the "more than average" size of Williams‘s bust, as Officer Duncan described it, did not constitute a reasonable circumstance that would allow officers to conduct an overly broad search.
Justice Yates took a different view, blaming not Duncan but the prosecutor for failing to present the key evidence.  "The written record," Yates wrote, is unclear or silent regarding several critical items."

• Why did Officer Duncan think a pat down would have been ineffective? Officer Duncan testified that he was concerned that Williams might have had something concealed in her bra that might not have readily been felt during a typical pat down. He stated that Williams’s bust size was "above average," but that does not explain why he thought she could have hidden a steak knife in her bra or that a pat down would not have revealed some indication of the knife, which could have justified additional searching. Although Officer Duncan may have been hesitant to pat down a woman’s bra area, he did not explain why a pat down would have been ineffective in this case had he done so, and the State has cited no authority to show that it is inherently unreasonable for a male officer to pat down a female suspect.
• Did Officer Duncan require Williams to reach under her dress to lift her bra, or did she lift her bra by grabbing it through her dress? The record merely states that she had to "reach underneath," but it is unclear if she was reaching underneath her dress also or just her bra, and the parties disagree in their briefs regarding the interpretation of the record on this point. 
• How much, if any, were Williams’s breasts or other body parts exposed during the search? The record is completely silent on this point. Though the State asserts in its brief that the search occurred in a place not observable by the public, it is undisputed that it occurred in a convenience store parking lot, and Officer Duncan testified in the hearing that Williams was not later subjected to a full strip search because "we’re right there in view of the public."

Regardless, the drugs are suppressed.  The Fourth Amendment lives after all.  At least in Texas, in the Fourteenth Court of Appeals (Houston), yesterday.
And so, for a rare moment of expressed pride in the state where I went to law school:
Go Red Raiders!

Another Try That Will Satisfy Nobody

It's a curious thing, this blogging business.

I've been at it for close to a year now, and I'm still trying to figure out how it works.  (Of course, I've been doing criminal defense for a couple of decades, and there's always more to learn about that, too.  And about being a human being, which I've been at much longer still.  But I digress.)  In particular, I'm still trying to figure out the audience thing.

Mirriam Seddiq wrote the other day about what she's learned about her readers from Sitemeter and how she's not sure she really wants to know.  Readers from the federal courts?  What do they want with her?  In a comment, I mentioned that what I found most interesting about what I learned from Sitemeter was the geography of my readers.  North Korea once.  What appears to be a couple of now-regular readers from different parts of Brazil.  There's someone in Budapest and someone else in Romania.  These are, it seems, not those folks who may get here while looking for "cops and blow jobs."  They're apparently folks who have some interest in what I'm writing.  Why?  What do they find interesting, important, valuable?

I'm not unhappy about it, you understand, but I'm curious.  I mean, I write this stuff for me, not for you, my readers, but I'm delighted to discover that you're out there and think (it seems) that at least some of what I say is worth your time and attention.  I might keep doing it anyway, but you provide significant support and additional motive.  As Sally Field didn't quite say, and as I can't quite say is true,

You care about me.

All of which is prelude.  Because suddenly I have a new and altogether identifiable audience.  I know why.  I'm surprised. (Perhaps I shouldn't be, maybe it's just my naivete, but I am.)  And I need to address you/them.

It goes back to the post I wrote on Sunday after seeing a piece on Robert Jobe on WTVG's website.  Jobe is in prison for the murder of Detective Keith Dressel of the Toledo Police Department.  Jobe killed Dressel while Dressel was trying to arrest him.  The prison system just moved Jobe to its prison in Toledo, and Dressel's family is upset.

In my usual discursive and rambling fashion, and taking as a trope an almost entirely irrelevant  reference to a wholly different murder case, I talked about how some survivors of crimes feel they've been mistreated by the system.  Sometimes they become legislative activists seeking to make new and more aggressive laws that will, they hope, assure that some piece of what happened to them won't happen again.  When they do, we get new laws.  Kidnapping became a federal offense through the Linbergh Law.  John Walsh's grief and anger and activism gave us the Adam Walsh Act.  And so, when I saw that Dressel's mother was going to speak to legislators, I imagined Dressel's Law.  And what I imagined was neither pretty nor, frankly, good legislation.

It turns out that someone noticed what I'd written and suddenly half the police officers in Toledo are reading my blog.  Welcome guys.

So now I've got the Spiderman problem.  You know.

With great power comes great responsibility.

There's this new and substantial audience that's taking very personally some of what I write.  I understand how that could be.

I've written about police misconduct, about officers who abuse the citizenry with impunity.  There's too much of that, and it needs to be aired - not because most officers are abusive or dishonest, most aren't, but because we need to do more, much more, to stop those who are and to rid the force of them.  And because one way to do that is to expose the system that too often encourages the worst in them.  And I've suggested, too, that our reliance on criminal law, and especially the "war" on crime of various sorts, to remedy perceived social ills is ill-conceived and dangerous, that it causes more harm than good.

I've also written about how it is that those who suffer criminal acts should have less, not more say in the criminal justice system, and why that is.  I know better than to expect wide agreement.  It's an argument about the nature of the Anglo-American legal system we have, and it's not much in favor these days (and maybe never has been). 

It's not comforting, but the legal system, and the criminal justice system in particular, was never designed to be comforting.  The remedy for persons harmed is in the civil system, and it's a woefully inadequate remedy.  Frankly, the law can't make up for the awful things folks do to each other.

I've had conversations, over the years, with people harmed by my clients.  I've even had a couple of comments on the blog from those folks.  I understand something of grief and anger.  I have considerable sympathy, and if the word weren't taboo these days, empathy.  I was absolutely not being, as my long-ago client may have been, dismissive when I said "shit happens."

Jobe got precisely the sentence Ohio law provides for the crime the jury concluded he committed: Murder with a handgun.  Might some have wanted him to get more?  Of course.  Hell, he was charged with Aggravated Murder, a more serious offense.  It almost certainly would have been charged as a death penalty case if he were 18 at the time of the killing. 

Would Jobe suffer more by being incarcerated at SOCF or Warren or OSP or wherever (one person commenting suggested a Mexican prison) other than at ToCI?  Maybe.  But the sentence isn't maximum suffering.  It's time.  Conditions of confinement aren't part of sentences in this country.

But you know, and here's what I was trying to get at, there's no sentence that will undo what happened that day.  The Dressel's loss cannot be undone by whatever might be done to Jobe.  Father, husband, son, friend, co-worker.  That they still grieve is understandable.  That they cannot or will not forgive, and that they remain bitter (or so it seems, and so I hear is true at least of his widow, Danielle) is equally understandable, though I'd wish for them to find peace - for their sakes, not for Jobe's.

The law is a lousy mechanism for dealing with human emotion.  The criminal system isn't ultimately about wrongs done to persons, it's about wrongs done to the body politic, to the social fabric.  That's why criminal prosecutions are brought in the name of and by lawyers for the State of Ohio rather than the person robbed or the one assaulted or the family of the officer who was murdered. The civil system is no better.  Success brings at the most cash, which may be nice, may help deal with the practical burdens that follow on loss, but is no real comfort.  We simply do not heal through law.  The Law's idea (the uppercase "L" is purposeful) of making whole by financial restitution is, for those emotionally battered by the acts of others (whether those others are individuals, corporations, or governments) is wholly inadequate, but it's all we've got.

Healing, reconciliation, peace, if they are to be found at all, must be found elsewhere.  Faith, counseling, time.  For some those bring solace, provide sustenance.  For others, not.  Some find peace in their own way.  Others never do.  I'm a lawyer, not a social worker or psychologist.  I don't know where they should turn, but I know where not to turn.  Look to find comfort through the courts or the prison system or the law and all you get is a slap in the face.

The law, after all, is supposed to be rational and dispassionate.  It's supposed to be unemotional.  We warn jurors not to be swayed by sympathy or emotion or prejudice for or against any party.  We want them to be coldly analytical because they, and the system they're part of, are to protect the individual against the awesome power of the state.  There's no place there for the needs and desires of the human victims of the criminal act.

I get it that that's frustrating, but don't blame me.  Blame James Madison and Alexander Hamilton.

DNA Yet Again

Want to know why we (that's the governmental "we," not you and I) are so scared to test the DNA?

Exhibit 250+ is Raymond Towler.  

Towler was arrested in June 1981.  That's almost 29 years ago.  He was charged with, and convicted of, raping an 11-year old girl.  The prosecutor called him "an animal."

Except, you know, he didn't do it.

In 1981, there was no DNA testing.  In 2004, DNA testing revealed nothing.  By 2008, DNA testing was more sophisticated.  Monday night the lab called the prosecutor.  This morning Towler walked free.  After 29 years.

According to the Cleveland Plain Dealer, he wants a new life and a pizza.

Raymond Towler freed after 29 years in prison for rape he did not commit

That's the wonder of DNA.  When it's there, it can tell us.  So why do they fight against testing it?

What are they afraid of?

H/t John P.

Professionals At Work

Sometimes the video is all you need.

This is something of a me-too.  Radley Balko posted it.  So did Robert Guest.  And Scott Greenfield.  Frankly, there's not much to add to the video itself: A SWAT team executing (if you'll excuse the term) a warrant on a home in Missouri.

A couple of weeks ago, I quoted this passage, written by Justice Antonin (head buried in the sand) Scalia, from the majority opinion in Hudson v. Michigan.

Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to "assume" that unlawful police behavior would "be dealt with appropriately" by the authorities, United States v. Payner, 447 U. S. 727, 733-734, n. 5 (1980), but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been "wide-ranging reforms in the education, training, and supervision of police officers." S. Walker, Taming the System: The Control of Discretion in Criminal Justice 1950-1990, p. 51 (1993). Numerous sources are now available to teach officers and their supervisors what is required of them under this Court's cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline. See, e.g., D. Waksman & D. Goodman, The Search and Seizure Handbook (2d ed. 2006); A. Stone & S. DeLuca, Police Administration: An Introduction (2d ed. 1994); E. Thibault, L. Lynch, & R. McBridge, Proactive Police Management (4th ed. 1998). Failure to teach and enforce constitutional requirements exposes municipalities to financial liability. See Canton v. Harris, 489 U. S. 378, 388 (1989). Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.

Here we see that "increasing professionalism."

The cops acted properly.  They got their warrant.  They went after the miscreants.  Did their job.  Smashed down the door, shot the family dog, terrorized the family and the kids, busted the parents for misdemeanor pot possession - and for endangering the welfare of the kids.

Saving the future, one dead dog at a time.

The kids, no doubt, are grateful for the fine work the cops did protecting their sensibilities.

Once again the question: Isn't it time to stop doing this stuff?

God Bless us, every one.

Willful Ignorance Takes One Small Hit

Public policy dictates that there be an end of litigation; that those who have contested on issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties. We see no reason why this doctrine should not apply in every case where one voluntarily appears, presents his case and is fully heard, and why he should not, in the absence of fraud, be thereafter concluded by the judgment of the tribunal to which he has submitted his cause.

So wrote Justice Roberts (Owen, not Chief John) for the Supreme Court of the United States, in Baldwin v. Iowa State Traveling Men's Assn. (1931).

The actual question in Baldwin involves civil procedure and collateral attacks.  Roughly, Baldwin Sued ISTA in Missouri.  ISTA said Baldwin couldn't do that because it didn't have sufficient connection to Missouri and, therefore, the Missouri court had no jurisdiction over ISTA.  If Baldwin wanted to sue, it should have done so in Iowa.  ISTA lost that argument.  Then it went home, and Baldwin was awarded damages.  ISTA didn't appeal the decision about where it could be sued.  Baldwin then went to Iowa and sued to collect.  ISTA defended that lawsuit by arguing that it couldn't have been sued in Missouri, the exact argument it had lost in Missouri. This time it won.

The Supreme Court's point is that ISTA had its chance.  It had a procedure it could have used to complain about the Missouri court's jurisdictional ruling, but it chose not to.  It could have ignored the Missouri court altogether and fought the jurisdictional issue in the Iowa courts.  It can't have it both ways.  Having given up the right to complain once, the Court said, ISTA can't just try and litigate the same point again.

You lost.  Get over it.

Frankly, the decision makes sense.  As the Court explains,* ISTA had several clear options in this case that would have allowed it to pursue challenges to the Missouri court's jurisdiction.  Ignoring the decision, which is what ISTA did, wasn't one of them.  Like I say, it makes sense.  You don't chose to fight in court A, lose, then decide to refight exactly the same battle in court B.  You want to go into A and fight, then keep fighting in A and through its mechanism for further appeal.

But the law is messy.  What makes sense in one context makes no sense whatsover in another.  The language that seemed so felicitous, so clearly to capture the point in Baldwin is seriously out of place 65 years later when Justice Alice Robie Resnick of the Supreme Court of Ohio quoted most of it in State v. Szefcyk.  In 1991, Szefcyk was driving a truck when he had an accident and killed Philip Lichtcsien, who was riding a bicycle.   A horrible traffic accident.  Typically, he would have been charged with vehicular homicide, a misdemeanor.  Instead, he was charged with involuntary manslaughter, a major felony.  What made it involuntary manslaughter was the underlying minor misdemeanor traffic offense.  Szefcyk was tried, convicted, and appealed.  The court of appeals affirmed his conviction and the Ohio Supreme Court refused to hear his appeal.

Later, however, in another case, the Ohio Supremes said that a minor misdemeanor traffic offense cannot be the basis of an involuntary manslaughter conviction.  The problem is that what turned the accident in Szefcyk's case into a felony was a minor misdemeanor traffic offense. So Szefcyk went back to court.

You can see where this is going.  He won in the court of appeals where the court said, roughly, since the Ohio Supreme Court says that what he did isn't involuntary manslaughter, his conviction for involuntary manslaughter should be vacated.  (I'm oversimplifying a lot, but that was the point.)  But the state appealed.  And the supremes reversed.  He had his chance to appeal (and took it, by the way), and he lost.  The fact that it turns out he was right is irrelevant.

Quoting another case from the U.S. Supreme Court that in turn quoted Baldwin, Justice Resnick said:

“‘[P]ublic policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties.’ [Citation omitted.] We have stressed that ‘[the] doctrine of res judicata is not a mere matter of practice or procedure inherited from a more technical time than ours. It is a rule of fundamental and substantial justice, “of public policy and of private peace,” which should be cordially regarded and enforced by the courts. ***’ [Citation omitted.]” Federated Dept. Stores, Inc. v. Moitie (1981), 452 U.S. 394, 401, 101 S.Ct. 2424, 2429, 69 L.Ed.2d 103, 110-111.

The language is largely the same (after all, Szefcyk quotes Baldwin), but the context is altogether different.  And while Baldwin makes perfect sense, Szefcyk makes none at all unless affirming convictions is a virtue regardless of whether they're proper.  That may have been the Ohio Supreme Court's real purpose, but if so, it's not one they were ready to admit.

Here's how the cases differ.

In Baldwin, ISTA was trying to game the system.  ISTA chose to go to Missouri and fight jurisdiction.  When it didn't win the argument there it chose not to challenge the ruling it lost.  Instead, it went home.  Later, hauled into an Iowa court, ISTA made the same argument and this time won.  The only difference between the Missouri and Iowa cases (as a strictly legal matter) is that Missouri thought ISTA was wrong and Iowa didn't.

Szefcyk never tried to game the system.  He didn't initially choose to go to court.  He was dragged there by the prosecutor who brought criminal charges against him.  He then pursued the argument up through the Ohio Supreme Court which refused to hear his case.  He did all he could.  Then the Ohio Supreme Court - the court that says exactly what Ohio law means - said that what he did wasn't a crime.  That means he should have won.  It's not a disagreement among courts, it's the first definitive word on the subject.  So he went back to court.

The US Supreme Court told ISTA it had its chance and chose not to take it.  It had no right to game the system, no right to argue again a technical question of the Missouri court's jurisdiction.

The Ohio Supreme Court told Szefcyk something rather different.  They told him that even though what he did wasn't the crime he was convicted of, and even though he'd made that very argument, he couldn't get the benefit of it because they're decision (that he was innocent) came after he'd made the argument rather than before.
If only they'd decided before he was tried, it would have been fine.  Too late for him.

What leads me talk about all this today is that the Ohio Supremes just issued another decision.  This time it's about DNA testing, and the case is State v. Prade.

Douglas Prade was tried and convicted of murder in the death of his wife, Margo Prade, back in 1997.  DNA testing at the time revealed so much of Margo's DNA from a bite mark on her coat (the bite wehn through the coat and a shirt and down to the skin) that no other person's could be recovered.  Prade appealed.

In 2004, under a recently passed law, Prade applied for DNA testing.  Under the law, there would be no post-conviction DNA testing if “a prior definitive DNA test has been conducted.”  Because the prior test excluded Prade (and everyone else in the universe except Margo), the court said it was definitive and denied the testing.

In 2008, armed with evidence that new testing methods would likely show the DNA of the person leaving the bite mark on the coat, Prade applied again.  Denied again, and for the same reason.  This time, the Ohio Supremes agreed to hear the case and today, by a vote of 4-2 (neither the late chief justice nor the newly appointed chief justice was involved and a visiting dissenter sat in for O'Connor, who recused herself), the court said that . . . . Well, they really didn't say all that much.  They said that the earlier DNA test wasn't "definitive" because new technology might actually say something definitive.

[A] prior DNA test is not “definitive” within the meaning of R.C. 2953.74(A) when a new DNA testing method can detect information that could not be detected by the prior DNA test.

Still, Prade doesn't get a new test unless the lower courts now agree that a new test would be "outcome determinative."

In dissent, Justice O'Donnell quotes that old line from Baldwin (and Szefcyk) and puts it in the context of Ohio's commitment to providing only a very "narrow" opportunity for post-conviction relief. As this court explained in State v. Steffen (1994), 70 Ohio St.3d 399, 410, 639 N.E.2d 67, postconviction review is not a constitutional right, and it provides only “a narrow remedy.”Because of the significant societal interest in the finality of judgments, the postconviction relief statute provides only a limited opportunity to collaterally attack a conviction, an opportunity not intended to allow inmates to relitigate issues previously resolved at trial. See id. (explaining that res judicata applies to actions for postconviction relief); State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 47 (noting that courts construe statutes establishing postconviction relief narrowly to uphold the societal interest in final judgments). As we stated in State v. Szefcyk (1996), 77 Ohio St.3d 93, 671 N.E.2d 233: “ ‘“[P]ublic policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties.” ’ ” Id. at 95, quoting Federated Dept. Stores, Inc. v. Moitie (1981), 452 U.S. 394, 401, 101 S.Ct. 2424, 69 L.Ed.2d 103, quoting Baldwin v. Ionwa State Traveling Men’s Assn. (1931), 283 U.S. 522, 525, 51 S.Ct. 517, 75 L.Ed. 1244.
. . .
In enacting R.C. 2953.71 et seq., the General Assembly took up this task, considered the public-policy questions raised by postconviction DNA testing, measured an inmate’s interest in proving actual innocence against the societal interest in the finality of judgments, and established a limited remedy affording postconviction DNA testing in cases where biological evidence has not been the subject of a prior definitive test. This court should not expand that remedy beyond the statute’s express terms. The legislature could have provided for courts to consider advances in testing technology in determining whether prior tests were definitive, yet it chose not to do so. Instead, by barring applications for retesting when there has been a prior definitive test, the legislature signaled its intent to uphold the finality of convictions.

I wrote yesterday about finality trumping fairness and even legal accuracy in the context of AEDPA.  Justice Terry O'Donnell (and visiting Judge Patricia Delaney) would apply that principle to DNA testing.  After all, the Ohio legislature said that upholding convictions is more important than being sure the right person was convicted, and that's the sort of position the courts have always taken before.  Why change now?

Just this once, and perhaps just for today, I can say that the Ohio Supreme Court rejected that approach.  Prade now gets a chance to argue that a DNA exclusion by more sophisticated testing than was available at trial might be outcome determinative.

I don't know what will happen next, and I certainly don't know whether Prade killed his wife.  But the guy's doing life in prison.**  It really doesn't seem like such a bad idea to find out if he actually committed the crime.  So the court got it right.  Public policy be damned.

-------------------

*In five pages with big type and lots of white space.  Today's Supremes could learn a lot from Baldwin about how to pare down opinions.

**Of course, we just executed Darryl Durr while the supreme court sat on its hands and refused even to decide whether he was properly denied DNA testing.  But Prade is only doing life, so he gets more protection.

Fair Trial? You Don't Need No Stinkin' Fair Trial

In a variation on the balls and strikes problem, what seems simple, straightforward, and perhaps self-evidently clear in the Constitution only seems that way to people who aren't lawyers.  Lawyers know better.  Lawyers know that the simplest constitutional language, whatever it may mean, pretty surely isn't what it says.

Take the Double Jeopardy Clause of the Fifth Amendment.

[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.

That seems clear enough.  You can't be tried twice for the same crime.  Except, of course, that you can.  Not always, but often enough.

I wrote about this at the end of March, the day before the Supreme Court held oral argument in the case of Renico v. Lett.  The issue in Reginald Lett's case, at least on the surface, is whether there was "manifest necessity" for a Michigan trial court to declare that the jury in his murder trial was hopelessly deadlocked after four hours of deliberations.  (For purposes of today's discussion, the details don't matter.)

If it was manifestly (which means "obviously") necessary (which means "necessary") for the judge to conclude that the jury was deadlocked, that there was simply no chance that the jury could unanimously decide whether Lett was guilty beyond a reasonable doubt, then he might be guilty beyond a reasonable doubt and could be tried a second time for the same murder.  (Just accept this; it's the law.  Don't try to make sense out of it.)  The Michigan Supreme Court said that it was close enough for government work.  The 6th Circuit Court of Appeals said it wasn't.

This morning, the U.S. Supreme Court gave the final answer.*

Lett lost, which really wasn't much of a surprise.  Chief Justice Roberts wrote the opinion which was joined by the usual suspects (Scalia, Thomas, and Alito), the man who holds the constitution in his hands (Kennedy), and one of the moderates (Ginsburg).**

Like I say, no surprise.  No big deal.  The law of double jeopardy remains exactly as it was yesterday.  

But this isn't a post about double jeopardy.  This is a post about fundamental fairness and the rule of law.  This is a post about how we (that's the societal "we') truly don't care.  

So we need another piece of background.  Lett is a case under AEDPA, the Anti-Terrorism and Effective Death Penalty Act of 1996.  The purpose of AEDPA (at least, it's relevant purpose) was to put a stop to federal courts overturning death sentences just because the courts, the prosecutors, the cops, or the defendant's own lawyers violated the Constitution.  See, habeas corpus is supposed to ensure that folks are not improperly tried or imprison or executed.  And the Constitution pretty clearly says that neither Congress nor the courts nor the president can just eliminate habeas corpus.  So they cooked up AEDPA to try and make it as close to meaningless as they could.   (They continue to work at that effort, since AEDPA hasn't fully stopped federal courts from finding that states violate the Constitution.

Here's how it works, as explained by our chief justice, in Lett.

It is important at the outset to define the question before us. That question is not whether the trial judge should have declared a mistrial. It is not even whether it was an abuse of discretion for her to have done so—the applicable standard on direct review. The question under AEDPA is instead whether the determination of the Michigan Supreme Court that there was no abuse of discretion was “an unreasonable application of . . . clearly established Federal law.” §2254(d)(1).

We have explained that “an unreasonable application offederal law is different from an incorrect application of federal law.” Williams v. Taylor, 529 U. S. 362, 410 (2000). Indeed, “a federal habeas court may not issue thewrit simply because that court concludes in its independent judgment that the relevant state-court decision ap-plied clearly established federal law erroneously or incorrectly.” Id., at 411.

See how neat that is.  The federal courts aren't interested in whether the trial court did the right thing.  They aren't even interested in whether he abused his discretion.  (An abuse of discretion, by the way, generally means that even if he got the got the law grossly wrong, his decision wasn't entirely irrational.)  Rather, they care about whether the state court that said the state judge didn't abuse his discretion was itself grossly wrong.

You could park an army in the space between that degree of wrongness and getting it right.

Still aren't sure?  Here's the last paragraph of Roberts' opinion.

AEDPA prevents defendants—and federal courts—from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts. Whether or not the Michigan Supreme Court’s opinion reinstating Lett’s conviction in this case was correct, it was clearly not unreasonable. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

There you have it.  It doesn't matter if the state properly applied the Constitution.  It doesn't matter if they get it right.  You don't after all, have a constitutional right to your constitutional rights.  You just have a right to not have them violated so grossly that it is an additional gross violation to ignore it.

It was Congress and Clinton that slammed that door with AEDPA.  But the Court was heading in that direction on its own.  Because, really, you can't let just anyone demand justice.  Where would we be then?

I said this was a post about fundamental fairness and the rule of law.  For the past 20 years or so, they've been systematically shutting the doors of the courts.  Sometimes Congress leads the way (AEDPA and the Military Commissions Act, for instance).  Sometimes the Court leads the charge  (Ledbetter v. Goodyear Tire & Rubber Co.).  Sometimes the Court shuts the door while pretending to leave it open (Safford Unified School District No. 1 v. Redding).  Sometimes one branch of the system ends up checking the actions of another branch.  But not always.

And sometimes, not often, but sometimes, they make it explicit.

And so, today, along with explaining that you don't have a right to your constitutional rights, the Court demonstrated just how serious it was about shutting the courthouse doors.  Scotusblog has the story.

Beginning tomorrow, the Supreme Court announced today, the public will no longer be able to enter the Court’s building by the main entrance at the top of the steps on the front.

------------------

*Final because it's last, not because it's more likely to be right about the law or facts than any other court.  The point was made by Justice Jackson, concurring in Brown v. Allen.

We are not final because we are infallible, but we are infallible only because we are final.

**Despite what the media, the Republicans, and a few Democrats would have you believe, there are no liberals on the Court, and have not been any for a very long time.

Daddy Made Me Do It

Oh the problems of the dishonest rich.

Sharon Keller, you remember her.  She's the one who shut the courthouse door, the one who said she did nothing wrong and wouldn't do a thing differently but shouldn't be punished because the judge making the recommendation thought she must have learned her lesson even though she denied it.  She's the one who explained to Frontline that

We can't give new trials to everyone who establishes, after conviction, that they might be innocent.

She's the multi-millionaire Chief Justice of the Texas Court of Criminal Appeals.  The one who has no sympathy and doesn't believe in second chances or mitigation or evidence of innocence or the rights of the accused.  Or so we thought.

Because see, when it's her ox that's being gored.

So when she was up on those charges of violating judicial ethics, she demanded counsel of her choice at state expense and at counsel's ordinary rates, regardless of her ability to pay.  She offered defenses that almost wholly failed to address the charges.  She denied responsibility and was outraged that anyone could think she might have been responsible for her own actions.  She . . . .

You get the idea.  And woe to the criminally accused or convicted with such chutzpah.

Anyway, now it's a different ethics charge.  This time, she screwed up her financial reporting forms.  

Here's how Jamie Spencer sums it up.

First, Presiding Judge of the Texas Court of Criminal Appeals Sharon Keller didn’t know she was stinking rich, and then, she simply forgot to report it as required by law. And even though she didn’t know about it, she apologized. Even though she had done nothing wrong.

With less editorial license, AP reported it this way.

The top judge on Texas’s highest criminal appeals court has been fined $100,000 by the Texas Ethics Commission for not fully reporting her income and property holdings. The fine against Judge Sharon Keller of the Court of Criminal Appeals is the largest ever imposed by the commission. Judge Keller’s sworn personal income statements for 2007 and 2008 did not include properties valued at more than $2 million and other income totaling about $183,000. She is facing five charges of judicial misconduct for refusing to accept a late appeal from a twice-convicted killer in September 2007.

The Dallas Morning News gives more detail.

The ethics commission found Keller did not disclose more than $2.4 million in holdings in the sworn financial statement she filed with the commission in April 2007 and more than $2.8 million in the document she filed in April 2008.
The largest omission the commission found was Keller's ownership interest in eight pieces of property. But the panel also found that she had not disclosed $183,000 in income and 25 bank notes, money market accounts and certificates of deposit.
The commission did not identify the properties at issue.
The News found Keller, who is from Dallas, failed to list two homes, valued together at $1 million, inside her family's compound on Garland Road. Her omissions also included two other properties valued at $823,000, a vacant commercial site in Euless and an occupied commercial property next to Keller's Drive-In on Northwest Highway.

And, oh, there's this.  She's appealing.  It is, after all, so unfair to hold her responsible for her own actions.  After all, it wasn't really her fault.  The story first broke more than a year ago.
She released a statement at the time saying that her father, who is in his 80s, had acquired the undisclosed properties without her knowledge.
Way to go, Judge.  

The Sausage Factory

"Shit happens."

One of my clients was alleged to have said that, dismissively, after watching on television the news story about a murder he had committed a couple of hours earlier.  

Shit happened to him, too.  He'll have to serve 30 full years in prison before he's first eligible for parole.  If the law at the time had allowed a sentence of life without the possibility of parole, he'd have gotten it, but the reality is that the Parole Board will almost surely see to it that he serves something very close to that.  It certainly won't let him out after "just" 30 years.

It's been a long time since I handled that case, probably 17 years or so ago.  I haven't tracked my client's progress through Ohio's prison system, and I'm not looking him up now.  But I'd lay odds that he's at the Toledo Correctional Institution.  That's where most of the serious bad guys from Toledo end up.  For its own reasons, the prison system mostly prefers to put prisoners close to their homes.

Shit also happened to Keith Dressel, too.  He was a detective in the Toledo Police Department.  The shit in his case was Robert Jobe who shot Dressel to death while Dressel was trying to arrest him.  Although Jobe was only 14 at the time of the killing, the state tried him as an adult, attempted to convict him of aggravated murder so that he could get sentenced to life without the possibility of parole.  The jury said no, it's simple murder (plus a firearm specifiction).  That means 18 to life.  His first parole hearing will be in 2024. The Parole Board won't let him out then, either.  Shit happens.

Then there's the officer's widow, Danielle.  Her husband's murder was obviously traumatic.  Shit that happened to her.  I've heard stories about her continuing bitterness.  She wanted, they say, young Jobe to get death, which wasn't a legal option.  She's embittered at the system, they say, that insists on giving rights to people who are charged with hurting cops.  These are stories, word on the street.  I've never met her.  I don't pretend to know the depth of her pain and the bitterness she feels.  But some of it is public.

I wrote this, in a different context, back in October.

In Toledo, the other day, some guys were on trial for assaulting cops. The verdict didn't go as the state (and the cops) hoped. See, the jury just didn't believe the police version of what happened. That led to considerable community outrage, including this letter to the editor of the Blade from Danielle Dressel, the widow of an officer killed on the job. She writes:

The detectives were doing their jobs, working on an ongoing investigation, when they were called names by these attackers. The detectives identified themselves as police officers. These men not only physically attacked the detectives, but attempted to steal their guns and badges. Out of the seven men who attacked our officers, only three were tried, and only one was convicted of misdemeanor assault. This is tragic.

Don't misunderstand me. I feel for her. But she wasn't there. She doesn't know that the officers were called names. She doesn't know that they identified themselves. She doesn't know that the defendant's tried to steal guns and badges. She believes it because it's the police version. She believes it because she's on their side. She believes it because to her, all cops are victims. I understand why she might feel that way given her history. But her blind belief that whatever the police say is true, that infallibility (if not invulnerability) comes with the job, doesn't make it so.

The jury knew better. So the jury must be at fault.

Like I say, shit happens.

Jobe has been in prison for a couple of years.  He's been held in a youth facility because he was under 18.  But now he's legally an adult, so they're putting him in adult prison.  Toledo Correctional.  Danielle Dressel is, according to WTVG-TV, the local ABC station, "furious."

One of our comforts was knowing that, okay, he's going to get out in 17 years, but he's not here. He's away from us. And now we have to deal with the fact that he's right down the street.

Frankly, and I don't mean to be callous about this, I don't know what there is for her "to deal with." It's not like she's going to be bumping into Jobe at the grocery store or the gym.  They'll be "neighbors" only in the most attenuated sense of the word.  She won't see him.  He won't see her.

He's taken away my son's father. My son will never get to see him again. We will never get to see Keith again, yet Robert Jobe has the ability to see his mom anytime she wants to come visit.

So maybe that's it.  It'll be easier for Jobe to see his mother when she wants to see him.  But really, that's about Jobe's mother, not about Jobe.  I've lost a husband and my children have lost a father.  So the killer's family should suffer just as much.  Shit should happen.

The Hatfields and McCoys might have understood.  (Disclosure, I know some descendents on both sides of that feud.  Good people who don't hold a grudge.  That was then, this is now.)

And it's not just Danielle.  Dressel's mother is furious, too.  But she's not just fuming to the media.  

Keith's mother, Lorraine, is furious the family wasn't notified before Jobe was moved. But the state doesn't have to do that. Lorraine says she plans to take action and contact state lawmakers.

Make way for Dressel's Law.  Coming soon to a state near you.

I'm not sure what it will be.  

• Permanent banishment from the community where the crime occurred?
• Permanent banishment from the community where the criminal lived?
• The right of the putative victim or survivor of crime to determine the location of the punishment?
• Crime victim control over conditions of confinement?

Something else?

Whatever it is, shit will happen.

Because, you know, it does.  And it's not something to treat dismissively.  But do they have to dump it on everybody's lawn?