A Procedural Quagmire

Over at Fault Lines (and if you haven't been going to Fault Lines, you should start), Christian Farias has a post on the constitutional difficulty of getting the Supreme Court to declare the death penalty unconstitutional.  The problem is a constitutional conflict.  

Chief Justice Warren's plurality opinion in Trop v. Dulles holds that the 8th Amendment's prohibition of "cruel and unusual punishments" 

must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

Those evolving standards are where constitutional abolitionists try to make their stand.  But the 5th Amendment specifically authorizes capital prosecutions and executions.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

And as as Antonin Scalia, who hates Trop the way Ted Cruz hates Obamacare, pointed out in his concurring opinion (responding to Breyer's call for an outright 8th Amendment challenge) in Glossip v. Gross, 

It is impossible to hold unconstitutional that which the Constitution explicitly contemplates.

As Farias says, 

It's a devastating textualist argument.

I'm not a textualist (though I think the text matters far more than Breyer does, since he believes more in what he imagines the Constitution wants to achieve than in what it actually provides), but I've long understood that conflict to be seriously problematic.  

Of course, the problem can be resolved easily enough by the Rule of 5.  The Constitution, after all, means only and precisely what 5 members of the Supreme Court say it does.  If there are 5 votes to say that the death penalty violates the 8th and is therefore unconstitutional, Scalia's fulminations won't matter.  And that's clearly been the hope for nearly 40 years.

But there's another way, the way Harry Blackmun was pointing in Callins v. Collins  when he concluded that the death penalty was unconstitutional.  

The 8th Amendment requires that the death penalty be imposed fairly, consistently, and reliably.  The 5th Amendment says that as long as there's sufficient process, executions are constitutional. Blackmun's epiphany, after his years of "tinkering with the machinery of death" is that the requirements cannot be reconciled.  What we've come to learn, what experience has taught, is that the framers expectation cannot be satisfied.  No amount of process is sufficient to achieve what the 8th Amendment requires.  

Here's Blackmun (footnotes omitted):

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.1Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants "deserve" to die? — cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, 507 U. S. 463 (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, 509 U. S. 350 (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. 722 (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

It's not the "evolving standards" of the 8th Amendment that the death penalty fails. It's the conditional authorization of the 5th Amendment.

At least, that's one argument.

In Our Culture But Not in Our Genetic Code

“Freedom demands a certain risk,” David Shipler wrote last year in The Rights of the People: How Our Search for Safety Invades Our Liberties. It’s a risk, he argued, we are too rarely prepared to take. To make that point Shipler examined breaches in what he called the physical boundary between the individual and the state, guarded by the Fourth Amendment. But Shipler was after more.  He knew that the Fourth wasn't the only Amendment jeopardized by the insistence that safety and security were more important than liberty. So he knew from the start that the "landscape [was] too vast."  So The Rights of the People was just the first volume.

The second volume is Rights at Risk: The Limits of Liberty in Modern America. It's out now, and it's as powerful as the first. This time Shipler focuses his attention on the First, Fifth and Sixth Amendments

Shipler understands the value of a good story, and he tells lots of them. He talks about the Chicago police torturing often innocent suspects to extract confessions from them and send them to prison or better yet (from the point of view of the cops) to the gurney.  And he reports on torture from wherever it was that John Yoo said it was cool for federal agents to waterboard Khalid Sheikh Mohammed because torture isn't really torture unless you're dead at the end and, besides, he was a bad guy and safety and security and who gives a shit about those sorts of niceties anyhow?  Oh, and he looked funny.

In his chapter on false confessions (what? you don't think they happen?), he notes that some two hundred people confessed to kidnapping the Lindbergh baby, and tells how the Central Park Five were essentially gulled into confessing to the rape of jogger Trisha Meili, a rape they didn’t commit.  And then he talks about the Reid technique, a manipulative method of interrogation that has a great track record for getting the innocent to admit guilt.

Clarence Earl Gideon

He begins a chapter on the rights to counsel and especially to effective assistance with the tale of Anthony Ray Hinton who’s been on Alabama’s death row for some 26 years since his trial counsel hired as a firearms expert “a one-eyed retired engineer who couldn’t operate a comparison microscope [and] had jurors laughing in ridicule.” And of course he talks about Gideon.

But it's not just the path breaking cases, the ones that make the headlines. It’s the ordinary, the quotidian. The path is worn now, but ill-tended. It buckles. It gets overgrown with weeds. You can follow the trail, but you may trip and stumble. And you're apt to ask why bother because it's just there and doesn't look all that much different from the surrounding terrain. Because these things really do happen every day. Maybe there's a lawyer, but barely because he's asleep, which is maybe dramatic enough to get noticed (see here, for instance), though sadly it happens often enough that the press often doesn't bother covering it and the courts too often blow it off).  And maybe there was a confession to what he didn't do and maybe he was convicted (or not or got really lucky and had the charges dismissed or really really lucky (following a run of awful luck) and got post-conviction exoneration. Or not.

Mary Beth and John Tinker

So while Shipler tells us about the famous (at least to lawyers and their hangers on), there are the others. Along with Gideon and Mary Beth Tinker, he speaks of people you’ve likely never heard of: Clemente Zavaleta and Mohammed Maddy and Barry Reingold, for instance. Theirs are the more typical stories of ordinary men and women. Some committed crimes. Some offended sensibility. Some seem to have been random victims of happenstance.

Of course, stories are not proof, and Shipler knows better than to pretend they are. Instead, he uses the stories to animate the argument, to provide the examples that show not only what can happen but what does. They are tied to the executive, legislative, and judicial decisions that spawned them. And their very ordinariness is part of the point.

Shipler makes that explicit when talking about the oppressive caseloads and lack of resources facing too many public defenders and appointed counsel.

The problem is even more insidious than the dramatic cases convey. The defects are nourished not just by individual malice but by systemic failure, an uncaring set of priorities that unbalances the adversarial process.

It’s not, after all, that in the aftermath of 9/11Shrub told Ashcroft that he hated the Fourth Amendment and wanted it ignored. (Really, that's not what he said.)  It’s that W simply didn’t consider the Bill of Rights when he said, “Make sure this never happens again.” The effect on the Fourth Amendment was consequential, but not precisely intentional. Similarly, when the courts allow police like Detective Tom McKenna, “to use guile and ruse," they probably expected (if they gave it even a moment's thought) that he’d do that (“and we do,” he added). But it's unlikely that expected that he'd use them to get false confessions from the Central Park Five. The courts were just thinking, if they were thinking at all, about how to get the bad guys.

The erosion of civil liberty is gradual, a slow eating away at our rights, a point Shipler makes nowhere more clearly than in his chapter on free speech and press in schools. Justice Fortas gave us  sweeping words in Tinker.

It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

But they give way when a high school student in Connecticut called her school principal and the superintendent “douchbags” and was punished by being denied the chance to run for senior class secretary. Then-mere-Judge, not-yet-Justice Sotomayor was part of the unanimous Second Circuit panel that ruled against her.

Shipler’s is, ultimately, an exhortation. 

The Bill of Rights is in our culture but not in our genetic code. . . . [Unless] taught and exercised until it becomes an intuitive ingredient of being American, it gradually succumbs to peer pressure, institutional hierarchy, and apathy.

And then, as he doesn't quite say, it dies.

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Thanks to the National Association of Criminal Defense Lawyers for sending me a review copy of Rights at Risk.  A version of this review will appear in The Champion, NACDL's monthly magazine, sometime this summer.

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Twice Put In Jeopardy

Lawrence Walls is doing 11 years for aggravated robbery, robbery, aggravated burglary, and a three-year firearm specification. Not a matter of much interest to anyone except Lawrence Walls and maybe some family or friends.* What's interesting about Walls is the circumstance of his conviction: He was tried one and a half times.

First came the half.

Trial began on Monday. They picked a jury, had opening statements, the state presented its case and then rested. By then it was time to quit for the day. The jury was sent home. The lawyers went off to prepare for the next day when Walls would present his alibi, the jury would hear closing arguments, the judge would give his charge and the jury would at least begin deliberating. And that's how things began on Tuesday.

Robert Burns, observing nature, recognized that you never really know what will happen and that expectation and even plan is too often beyond our grasp.

But, Mousie, thou art no thy lane

In proving foresight may be vain:

The best laid schemes o' mice an' men

Gang aft a-gley,

An' lea'e us nought but grief an' pain,

For promised joy.

And so it came to pass. Tuesday morning, instead of finishing the trial, the judge sent the jurors home, and told them to call the court that evening for instructions. A couple of hours later, and over the objections of Walls, the judge declared a mistrial.

Tuesday, you see, was September 11, 2001. Who knew what would happen next?

Another trial, in the same courthouse, was also interrupted that morning. The judge overseeing that trial, too, sent the jury home Tuesday morning. Rather than a mistrial, though, he brought the jurors back a while later and finished the trial.

Ultimately, as I say, Walls was convicted. There was one issue raised in his appeal.

TRIAL COURT ERRED IN DECLARING A MISTRIAL SUA SPONTE

AND OVER THE OBJECTION OF THE DEFENDANT.

The idea was that, under the circumstances, a second trial would violate the protections of the double jeopardy clause of the Fifth Amendment. You know, the one that say that no person shall

for the same offence to be twice put in jeopardy of life or limb.

Seems simple enough. Once they start to try you, they don't get a do over. Like so much of what's in the Constitution, the Courts have determined that the double jeopardy clause doesn't really mean exactly what it seems to say. The Supreme Court laid it out in a capital case, United States v. Perez, back in 1824. Here, in its entirety, is Justice Story's opinion for the Court.

This cause comes up from the Circuit Court for the southern district of New-York, upon a certificate of division in the opinions of the Judges of that Court. The prisoner, Josef Perez, was put upon trial for a capital offence, and the jury, being unable to agree, were discharged by the Court from giving any verdict upon the indictment, without the consent of the prisoner, or of the Attorney for the United States. The prisoner's counsel, thereupon, claimed his discharge as of right, under these circumstances; and this forms the point upon which the Judges were divided. The question, therefore, arises, whether the discharge of the jury by the Court from giving any verdict upon the indictment, with which they were charged, without the consent of the prisoner, is a bar to any future trial for the same offence. If it be, then he is entitled to be discharged from custody; if not, then he ought to be held in imprisonment 580 until such trial can be had. We are of opinion, that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defence. We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office. We are aware that there is some diversity of opinion and practice on this subject, in the American Courts; but, after weighing the question with due deliberation, we are of opinion, that such a discharge constitutes no bar to further proceedings, and gives no right of exemption to the prisoner from being again put upon trial. A certificate is to be directed to the Circuit Court, in conformity to this opinion.

That's it. The jury was hung. Perez could be tried again.

The key words are "manifest necessity" and "sound discretion." The key point is that the double jeopardy clause shouldn't be ignored lightly.

To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner.

Except those words are followed by "But," and that upends the whole thing. It means, in essence, that courts should be very wary about declaring mistrials - especially when the defense objects - and they may do so only in extreme cases. Or they can do it whenever they want, and we'll just say, "close enough for government work."

One judge in Toledo didn't declare a mistrial and the case went forward. Another declared one and the court of appeals said it was an extreme situation and "manifest necessity" and really the judge had no choice and by golly, the judge didn't actually abuse his discretion. And so Lawrence Walls doesn't get the benefit of the protection against double jeopardy. He can be tried a second time.

All of that is old news. Perez is a case from 1824. Lawrence Walls has now done well over 8 years of his 11 year sentence. But as they say, what goes around comes around. And now the Supreme Court has to decide whether to put some teeth into Justice Story's imprecation.

To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner.

The case is Renico v. Lett and it's attracted surprisingly little interest so far. Not a single amicus brief. The ACLU hasn't weighed in. Neither has the National Association of Criminal Defense Lawyers. Nor has the Court heard from dozens of state Attorneys General or from the Criminal Justice Legal Foundation or the prosecuting attorneys' associations. Like I say, little attention.

But it'll matter to Mr. Lett.

Here's the story.

In August 1996, in Detroit, Adesoji Latona was shot and killed. The next year, Reginald Lett was tried for the murder. After 11 hours of testimony over four days, the jury went off to deliberate. They were out a total of four hours during which they sent the court 7 notes. The first expressed a concern that they were being so loud other court matters were being disrupted. The last asked what would happen if they couldn't agree on a verdict.

Judges hate hung juries. Typically, when the jury says it can't agree, the judge sends them back and tells them to keep trying. Sometimes the judge reads them a special charge designed to coerce a verdict (we believe for the government, though the courts deny that). Judges keep seemingly deadlocked juries going for days. They deny them food. They threaten to keep them deliberating over holidays. Only when all that fails do they concede there can't be a verdict and that the jury is hung. Not this judge.

The judge brought the jury into the courtroom. Now, from the transcript.

THE COURT: I don’t want to know what your verdict might be, or how the split is, or any of that. Thank you. Okay? Are you going to reach a unanimous verdict, or not?

THE FOREPERSON: (No response)

THE COURT: Yes or no?

THE FOREPERSON: No, Judge

And the judge immediately declared a mistrial. Lett was tried again and convicted. The Michigan courts figured that there was that old manifest necessity for a mistrial. The federal courts disagreed. The trial judge just hadn't really made sure the jury was deadlocked. And since the judge hadn't, calling the mistrial was premature. The judge wasn't cautious. The case wasn't plain and obvious. No manifest necessity.

Lett goes home (after, of course, spending over a decade in prison, but hey, his sentence is 16-40 years). Or maybe he doesn't. Michigan asked the Supremes to weigh in, and they agreed.

So what's the answer? If I were Lett, I'd be worried at the prospect of seeing defeat snatched from the jaws of victory. He can lose on the merits. (Close enough for government work.) He can lose on technical grounds involving application of habeas corpus law (insufficient deference to Michigan courts, say, or no clearly controlling Supreme Court law). He can lose 5-4, and you've got to figure that 4 of the 9 started out sympathetic to Michigan or why would they have agreed to hear the case.

Prediction is risky, expectations ephemeral. Just ask the mouse who had his burrow disturbed by Bobby Burns.

But I'll offer this. The surest votes to uphold the idea that the Constitution doesn't come close to meaning what it says are the Justices who believe that the Constitution always means what it says. And the ones who think that the job of judging is easy. Balls and strikes. You don't even have to look at home plate. Just think about who's pitching.

We'll know in a couple of months.

Oral argument is in the morning.

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*But maybe not. One of the dirty secrets of our society is that so many of those who turn to crime were, themselves, abandoned by family and are without friends. Another is that family and friends too often abandon those doing long stretches of time. One consequence of the latter is that those prisoners do less well in the institution and are more likely to reoffend when they get out. For the social contract to be successful, there has to be a social part of it. More community resources and more help for families and better support systems for those we incarcerate (and incarcerating fewer) all lead to less crime. To our shame, we in this country are far more interested in punishing crime than we are in preventing it.