There are two kinds of reactions to the following statement, made by Andrea Mitchell on Morning Joe, about Elena Kagan’s qualifications to be a Supreme Court Justice:

If you can run Harvard, and the Harvard Law factory, then you can run almost anything.

Reaction number one… nodding head in silent (and unthinking) approval, and reaction number two… “What’s that again?”

Seriously? Anything? As Dean of the law school, she proved adept at fundraising, no doubt. But this qualifies her for almost anything? What about vetting mergers and acquisitions, negotiating a contract, representing someone in a divorce, not to mention running a bakery or a bank…

Continue Reading Qualified For Anything

The U.S. Supreme Court decided Whorton v. Bockting yesterday, announcing that the rule in Crawford v. Washington will not be retroactively applied to cases that became final on direct appeal before the Crawford decision.

Some quick history here: Crawford overruled Ohio v. Roberts, and held that the Confrontation Clause meant exactly what it said… criminal defendants have the right to confront their accuser, in open court, and cross examine them about their allegations. The Roberts decision allowed hearsay testimony of unavailable witnesses if the statement bore “sufficient indicia of reliability”. But the Crawford decision changed that to “only where the defendant has had a prior opportunity to cross-examine” the witness.

In truth, Whorton v. Bockting is more a procedural rather than a substantive decision which discusses at length the rule laid out in Teague v. Lane. Teague is the Supreme Court decision laying the framework for retroactivity analysis for “new rules”. New rules are only to be applied to old cases if they (1) are substantive or (2) are watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.

The Whorton decision then goes on to explain that Mr. Bockting’s right to cross examine the witness against him fits neither of those categories.

Legal academics and Supreme Court watchers can expound all they like about why this is correct, but let me try to illustrate why it is not. As a practicing criminal defense attorney in Austin, I can imagine now having the following conversation with a client.

Q: I was convicted without being allowed to cross examine the witness against me, and the Supreme Court has ruled that violates the Bill of Rights, correct?

A: That’s true. Defendants have a right now under Crawford to either disallow “testimonial evidence” by way of hearsay, or to confront their accuser.

Q: I’ve been sitting in (jail/prison) for some time now based on that conviction…I can get a new trial, right?

A: Well, no. Your appeal was final before they decided Crawford, so you’re out of luck.

Q: You mean because I have been imprisoned for so long that my initial appeal process actually expired, I can no longer get that fair trial, where my lawyer can at least ask questions of my accuser in front of the jury?

A: Well, that’s what the Supreme Court decided. Yes, from now on, people have the right to confront their accusers because of Crawford, but not you. You have to serve out the rest of your sentence.

Ridiculous. Outrageous even. I’ll have some more posts in the next few days about this case, regarding the practical (i.e. real) reasons the Supreme Court ruled the way it did.

There’s been quite a stir in the blogosphere over the Supreme Court decision in Cunningham v. California. Much of it has lamented the fact that the convicted defendant’s sentence was lowered as a result of the decision, without much thought about the principles involved.

Actually, it’s quite simple really. The Supreme Court invalidated that part of California’s sentencing that allowed a judge to impose a higher sentence than the jury verdict authorized.

Let’s take a look at it from the perspective of the laws in Texas on Assault. The three main categories of assault in Texas are: Class C Assault – offensive touch, Class A Assault –bodily injury, and Aggravated Assault – serious bodily injury or deadly weapon.

These three range from a traffic ticket level offense, punished by no jail but up to $500, to a second degree felony, punished by up to 20 years in prison. Obviously, that makes quite a difference.

Let’s say you were charged with assault, because someone filed a complaint against you for pinching them, and they found that offensive. That’s a Class C.

You want to dispute the charges, and you go to jury trial and lose – the jury finds you guilty, of Class C offensive touch. Now, while that’s bad enough, here’s what California’s scheme effectively did before it was struck down.

It allowed the judge then to make a finding that there was either serious bodily injury involved, or that you used or displayed a deadly weapon, even though neither of these issues was submitted to the jury. The judge, after making the finding, elevates your offense to a second degree felony and sentences you to the 20 year maximum for that charge. 

Or 5 years. Or anything within the 2-20 year and up to $10,000 range. (This isn’t the case in Texas – I’m just using this as an example.)

California v. Cunningham simply said that if there were facts to be decided that increased a defendant’s punishment (other than prior convictions), that those facts had to be admitted by the defendant, or submitted to a jury and proven by the prosecution beyond a reasonable doubt.

When you take a look at it from the proper perspective, it makes perfect sense. After all, isn’t that what trial by jury is supposed to mean in the first place?

Ray Suarez started his questioning of Marcia Coyle about yesterday’s Supreme Court Cunningham decision with the following:

Today, the U.S. Supreme Court struck down California’s Sentencing Guidelines which had allowed judges the discretion to increase prison time for convicted criminals based on factors not considered by a jury during trial.

As a fan of the NewsHour, I’ll give credit where it’s due: this summation actually does a better job of legitimately stating the issues involved in the case than most major media outlet were able to accomplish. Yet it’s a heck of a loaded beginning for this story.

First we hear the phrase about allowing judges discretion to “increase prison time for convicted criminals”. That sure sounds like a good thing doesn’t it, why would the Supreme Court disallow that? But what’s the alternative? Increasing prison time for acquitted defendants? (We are pretty close to that already.)

And the phrase “based on factors not considered by a jury during trial” is pretty watered down. Yet this is exactly what was at issue in the case. The intro would be better phrased:

Today, the U.S. Supreme Court struck down California’s Sentencing Guidelines which had allowed judges to increase prison time above the maximum allowable punishment for some crimes, despite a jury not convicting the defendant of the aggravating factors.

I wrote that in a hurry, and perhaps it could use some copywriting help, but it properly focuses the listener on the real issue involved in the case. 

The right to a jury trial means, essentially, the jury must convict you beyond a reasonable doubt, and no judge may increase your punishment based on “factors not considered by a jury during trial”.  Thank goodness six justices of the Supreme Court are starting to enforce that right.

A few days after I posted a comparison between the sentences for Enron’s Jeffrey Skilling and Leandro Andrade(sentenced to fifty years for petty theft with a prior), the New York Time uses Andrade as a comparison point as well.


The Times, however, was comparing the Supreme Court’s seeming eagerness to apply the Due Process clause to limit punitive damages in civil cases for corporations to its unwillingness to use the Eighth Amendment’s prohibition against cruel and unusual punishment.


The Andrade case often makes a good comparison point, because it is such a stark and obvious example of our system of overpunishment, which is then mostly applied to the poor.  An award of $79.5 million against Phillip Morris is being heard by the Supremes next week.  From the Times:


The Eighth Amendment expressly bars “cruel and unusual punishments,” which might reasonably be interpreted to cover imprisoning a man from age 37 to 87 for stealing $153.53. The companies claimed only that the punitive damages awards violated their “due process” rights, a far greater textual stretch.


On the issue of what is “excessive” punishment, Mr. Andrade’s claim is also stronger. It is hard to see how it is excessive to make Philip Morris, whose market capitalization is $166 billion, pay a mere $79.5 million for “extraordinarily reprehensive” and lethal conduct, but not excessive to make Mr. Andrade spend what is likely to be the entire second half of his life in prison for a petty theft.


It may very well be that some jury’s overpunish corporations with excessive civil verdicts, even in cases where they deliberately hid the deadliness of their products.  But certainly some of that Tort Reform outrage against “plaintiff’s lawyers” for excessive verdicts can somehow be channeled into a movement for Sentencing Reform.

…and if they do, will a judge toss out any evidence they obtain as a result? The short answer is: police in almost all circumstances are allowed to say whatever they want to get you to incriminate yourself. A short example follows:

When Al Pacino, the low level mobster, introduces Johnny Depp, the undercover police agent, to the other Mafiosos in Donnie Brasco, Depp’s character is justifiably met with some initial skepticism.  Is an undercover police agent in this situation duty bound to reveal his real identity in this situation, if he is asked, “Are you a cop?” Imagine the consequences.

Common sense tells us the answer is no. The undercover agent doesn’t have to choose death simply to maintain the constitutionality of the investigation. (And the U.S. Supreme Court came to the same conclusion in Hoffa v. United States. Yes, the Jimmy Hoffa.)

Even before that decision, police ruses were commonplace, and they have become even more so in today’s drug war environment.

In the recently decided Krause v Kentucky, however, the state’s Supreme Court decided that a trooper went too far over the line in obtaining a drug suspect’s consent to search his home. The police in this case woke the defendant up at 4 o’clock in the morning to tell him that his roommate had been accused of rape that very night. They needed to search the house to verify whether the accuser’s description of the apartment matched the scene of the alleged crime.

In fact, there had been no rape, not even an allegation, nor an accuser. It had all been a lie, intended to cause the known innocent person to allow police entry, where they could then search for drugs. Cocaine was eventually found “in plain view”.

The Court decided to reverse the conviction (affirmed by a lower court) because Schneckloth v. Bustamonte requires consent to search not to be coerced. Even that part of the Schneckloth decision has been watered down over the years, but the Court found that upholding the search would discourage future citizen cooperation in real cases.

Since the state decision was decided, at least in part, on federal Fourth Amendment grounds and federal caselaw, the State of Kentucky may appeal this all the way to the U.S. Supreme Court. Part of me wants to know what the result would be, and the other part fears further erosions of our constitutional rights. As far as the drug war goes, is there no end in sight to the ridiculous police state we are becoming?  Don’t forget, this ludicrous set of facts led to a conviction which was initially affirmed.

(Hat Tip to the Fourth Amendment blog for initially posting about this case; also, please read that blog for useful tips on navigating the confusing Kentucky Supreme Court’s webpage, if you want to read the decision.)

The New York Times announces the untimely death of one of the co-defendants in Lawrence v. Texas with the headline "Tyron Garner, 39, Plaintiff in Pivotal Sodomy Case, Dies".

It may seem to the public that Lawrence and Garner were plaintiffs, because they were the appellants, and their names are listed first on this famous case.  However, let us not forget that in truth they were criminal defendants, who had been convicted of the criminal offense under Texas law at the time of "Homosexual Conduct". 

Yes, Lawrence and Garner will be remembered as standing up for their civil rights.  But it’s important to remember that the case actually revolved around whether or not Texas could constitutionally criminalize consensual, adult homosexual activity.  This is spelled out quite clearly as the issue presented to the court, in the fifth sentence of Justice Kennedy’s majority opinion:

The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.

The fact that it was "only" classified as a Class C criminal misdemeanor, doesn’t mean that Texas couldn’t have made it a more serious criminal offense.  The arguments the State used to justify its position would have also justified making this felonious conduct.  After all, Garner and Lawrence were arrested and taken to jail based on this statute.  Thankfully, the U.S. Supreme Court took the opportunity to overrule Bowers v. Hardwick.

Sadly, I should also point out that the Times is also reporting that former Texas Governor Ann Richards has died at the age of 73.