Category: Criminal Procedure


KSM’s Resistance Defense

Jenny Carroll is a former public defender and Prettyman Fellow. She currently teaches criminal procedure, criminal law and evidence at Seton Hall Law School.

Last Saturday, Khalid Sheikh Mohammed (“KSM”), the self-proclaimed mastermind of the September 11 attacks, and four others were scheduled to be arraigned before a military commission in Guantanamo Bay, Cuba. Things didn’t go exactly as the government had planned.  Instead of pleading, the defendants resisted.  KSM and the rest of the defendants refused to answer the judge’s questions. One defendant started praying, and another defendant shouted that he was concerned for his own and the other defendants’ safety.  The behavior turned the arraignment – usually a fairly brief proceeding – into a disorderly 13-hour hearing.

These are obviously unusual defendants. They claim to have planned a devastating act of terrorism that forever changed our nation’s sense of security and itself.  They have been held by their self-proclaimed enemy for nearly ten years awaiting trial.  During that time, evidence against them was acquired through mechanisms reminiscent of the Spanish Inquisition — according the military’s own records, KSM was water boarded a total of 183 times in a single month.  When their day in court finally arrived, the venue was not the federal court in New York, the most logical jurisdiction and the one Attorney General Eric Holder would have preferred, but a military commission.  And while these commissions may have improved markedly since their inception in the Bush Administration, they remain shrouded in mystery with uncertain procedural or Constitutional protections.

Although these are unusual defendants in an unusual case, their strategy of resistance is not entirely new.  The strategy declines to recognize the authority of the court and calls into question the legitimacy of the very system that claims the power to adjudicate.  A long line of political dissidents and activists have sought to transform their criminal trials into a commentary on the system itself.  In my forthcoming article, The Resistance Defense, I examine the implications of this defense.  As I suggest there, the defense of resistance highlights two compelling but under-explored components of criminal law.  First, the procedural rights that compose the right to a defense are more than individual rights; they have a communal value.  The defendant may utilize them to challenge the accusation, but the community relies on them as well to legitimate the process and outcome.  If a defendant forgoes these protections, the process is curtailed and questions of its legitimacy inevitably follow.  Second, these procedural rights have a substantive component.  They help to define notions of guilt and appropriate punishment.  If a defendant chooses to forgo these rights, they effectively alter what it means to be convicted or to deserve punishment, skewing the meaning of the law itself.

In the context of these cases, the resistance defense raises larger questions:  What do we really have to lose by trying this case, or any of the military commission cases, in the federal court system that we trust every day with our most difficult cases and complex constitutional issues?  Why couldn’t New York, the city that no matter what seems to endure and constantly rise ever higher, not handle the trial of the men accused of killing so many of its citizens?   I, like everyone else, have heard the warnings of the high costs of security and risk of reprisals.  But in allowing these trials to remain in these military commissions so besieged on all sides by questions of their legitimacy and sufficiency, have we lost something is more difficult to quantify but is infinitely more valuable?  Have we struck a blow against ourselves as frightening as those imagined by KSM or anyone else who would plot against us?  Have we abandoned the procedure and Constitution that we claimed to defend because we were more afraid of the men who would challenge it?  In some cruel twist, have we forgotten the very freedom we claimed we were defending?


Where Have All Our Fourth Amendment Rights Gone?

The Supreme Court will decide on Friday whether to review Virginia v. Banks, a case that could potentially expand the “exigent circumstances” exception to the warrant requirement of the Fourth Amendment. The Supreme Court could also use this case as a vehicle to further limit the exclusionary rule, which precludes admission of the fruits of Fourth Amendment violations into evidence at trial. The Virginia Court of Appeals held that police cannot use evidence found in a suspect’s jacket, grabbed by police with the intention of keeping him warm after arresting him in his home, when they have no warrant or other constitutional reason to search and seize the jacket. I fear that the Supreme Court, following its trend of eviscerating our Fourth Amendment rights, will find a way for courts to admit into evidence the gun found in Mr. Banks’s jacket.

I’ve been pondering some Hamlet-like questions. Is it better for the Court to candidly admit that it wants to tie Fourth Amendment violations solely to police bad faith, and thus undo many applications of the exclusionary rule that apply regardless of the officer’s intentions (this is where the Court seems to be going, unfortunately), or is it better for the Court to slowly chip away at Fourth Amendment rights?  It’s hard to see how this case presents a true exigency, but instead of frankly announcing that the exclusionary rule applies only in cases of bad faith by the police, the Court may squeeze Banks into the exigent circumstances exception.  More of our Fourth Amendment rights will remain in the latter scenario, because the Court won’t invalidate the exclusionary rule jurisprudence, but the doctrine will be disingenuous and incoherent. And, is it better to have Fourth Amendment rights that cannot be enforced through the exclusionary rule than never to have any Fourth Amendment rights at all? Maybe we should incentivize police officers, by not applying the exclusionary rule, to perform nice gestures like grabbing a suspect’s coat (without permission from the suspect). To exclude or not to exclude: that is the question.


Drug Sniffing Dogs and Quantifying Probable Cause, Redux

My first post on the reliability of drug detection dogs was linked to by EvidenceProf Blog, where Colin Miller makes an excellent point about why quantifying probable cause may be more feasible than quantifying proof beyond a reasonable doubt. Although an artificial imposition of a numeric value on the proof beyond a reasonable doubt standard will likely confuse jurors, writes Miller, we believe in many contexts that judges are better equipped to navigate complex evidentiary matters.

Since judges- not jurors- decide whether probable cause justifies a particular search, quantifying probable cause might not unearth such a parade of horribles, the fear of which has imprisoned the probable cause standard in fuzziness for so long.  We may need to quantify probable cause to decide if a positive alert by a drug sniffing dog gives the police enough suspicion to conduct a full search of a person’s car, or suitcase, or of the person’s person.

Let me be clear. I am not arguing (at least for now) that every probable cause determination should be calculated according to a mathematical algorithm where the evidence has to yield a certain likelihood of criminal behavior (40%?, 50%?, 51%?) before probable cause is satisfied. However, if the Supreme Court affirms the Florida Supreme Court’s holding that evidence of a dog’s false positive rate must be admitted as part of the probable cause inquiry, courts will have to grapple with some quantification of probable cause. Unless the Supreme Court decides that a positive alert by a drug detection dog is never, on its own, sufficient to establish probable cause, courts will confront situations where a dog’s positive alert is the sole reason to suspect someone of possessing drugs. This could occur at an airport, or at a drunk driving checkpoint, or anywhere where drug dogs are permitted to routinely sniff individuals without suspicion. In that case, courts will have to decide if the dog sniff alone is sufficient to establish probable cause.

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Stanford Law Review, 64.3 (2012)

Stanford Law Review

Volume 64 • Issue 3 • March 2012


Fifth Circuit Considers Constitutionality of Cell Site Location Data

Department of Justice litigators just filed a reply brief in an exciting but complex case in the Fifth Circuit that concerns law enforcement access to cell site location data.  As amicus curiae, I hope to deepen readers’ understanding of the basic issues in the case and also to provide some insider’s insights.  This blog post will furnish the background that later postings will draw upon.

The litigation began when Magistrate Judge Smith rejected three government applications for cell site location data that did not purport to satisfy probable cause.  I highly recommend Judge Smith’s thoughtful opinion that holds that agents must obtain a warrant to compel service providers to disclose a target subscriber’s stored records of cell phone location data.  Justice Department lawyers appealed Judge Smith’s denial, as well as the District Court’s order that agreed with Judge Smith, because they claim the right to compel disclosure whenever they satisfy the “relevance standard” under 18 U.S.C. § 2703(d) (“D order”).

My amicus brief argues that the Fourth Amendment requires a probable cause warrant for all location data, which is similar to the argument in EPIC’s amicus briefEFF and ACLU made that argument as well, and they also suggested that the Fifth Circuit could find that the Stored Communications Act gives magistrate judges the discretion to require either a warrant or a D order.  EFF and ACLU previously advocated the discretionary approach in the Third Circuit, and the Third Circuit recently adopted it in the only federal appellate decision on the matter.   Orin Kerr’s amicus brief argued that magistrate judges lack the authority to deny government applications on the grounds of unconstitutionality.

The case’s importance derives from the lack of appellate guidance on law enforcement acquisition of cell site location data, which has become commonplace, according to the ACLU’s recent release of numerous public records.  The ACLU’s report reveals a wide array of procedures, with some practices clearly lacking appropriate protections against misuse.  Congress currently sits on bills that would clarify the standards; one would require a warrant for access to all location data; another would require a warrant only for prospective location data and not for stored data.

In future postings I will discuss how low procedural hurdles as well as a lack of notice and transparency make location data acquisition a threat to civil liberties.  I will also discuss the continued use of arbitrary distinctions (such as between historical and prospective data) that unduly complicates the law and limits privacy protections.  I will argue, for example, that the Supreme Court’s Jones case concerning GPS tracking in real-time governs historical location data.  With luck, I will even shed some light on just what location data is.  Please stay tuned.


Rules v. Standards Across Constitutional Rights

I’ll admit my bias: I desire for the law to be clear and elegant. In law school, I preferred rules over standards (this has relaxed somewhat with age). Part of what drew me to the legal academy was the opportunity to produce scholarship that closes logical loopholes in jurisprudence, unifies inconsistent doctrines, and harmonizes precedent. At the margins, I’d often rather the law be more clear than more “correct.”

This bias may stem from an innate personality attribute (some of us are foxes and some are hedgehogs), or a belief that clarity promotes the rule of law. It is also likely that my initial area of interest and scholarship, First Amendment law, influenced my approach. An abundance of fact-bound inquiries and totality of the circumstances tests would eviscerate the spirit of free speech protected by the Amendment. First Amendment law is not without its balancing, but most of us have internalized the idea that judges are not generally permitted to decide which speech of private citizens has value and which speech does not. The First Amendment reflects a deep fear that those in power will dictate community values. Clear rules are necessary to prevent corruption of the doctrine, and the slope is considered very slippery. These clear rules are what led eight Justices on the Supreme Court to decide that the Westboro Baptist Church has the right to spew their simultaneously incoherent and pointedly hateful message, and for the same eight Justices to hold that depictions of animal cruelty are protected speech. These rules are why we can burn the flag as symbolic speech.

In teaching Criminal Procedure, I have repeatedly been struck by the fact that this sort of clarity is sorely lacking from cases concerning restrictions on criminal prosecution. It’s easy to come up with hypos for Crim Pro, because it’s so often unclear how a new fact pattern will be decided by the Court. Do suspected terrorists deserve their Miranda rights? Surely, they do. Miranda was intended as a bright-line test for suspects receiving custodial interrogation. Yet, somehow, both Senator McCain and the Obama administration feel that the decidedly narrow public-safety exception to Miranda may apply to this entire class of people.

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Appleman on “Justice in the Shadowlands”

Those interested in today’s strip search opinion might want to take a look at Laura Appleman’s article on the types of pre-trial horrors the Court’s majority may also be unmoved by:

[W]e routinely detain the accused in often horrifying conditions, confined in jails while still maintaining the presumption of innocence. Here, in the rotting jail cells of impoverished defendants, are the Shadowlands of Justice, where the lack of criminal procedure has produced a darkness unrelieved by much scrutiny or concern on the part of the law.

This article contends that our current system of pretrial detention lies in shambles, routinely incarcerating the accused in horrifying conditions often far worse than those convicted offenders existing in prisons. Due to these punitive conditions of incarceration, pretrial detainees appear to have a cognizable claim for the denial of their Sixth Amendment jury trial right, which, at its broadest, forbids punishment for any crime unless a cross-section of the offender’s community adjudicates his crime and finds him guilty. This article argues that the spirit of the Sixth Amendment jury trial right might apply to many pretrial detainees, due to both the punishment-like conditions of their incarceration and the unfair procedures surrounding bail grants, denials and revocations. In so arguing, I expose some of the worst abuses of current procedures surrounding bail and jail in both federal and state systems. Additionally, I also propose some much needed reforms in the pretrial release world, including better oversight of the surety bond system, reducing prison overcrowding by increasing electronic bail surveillance and revising the bail hearing procedure to permit a community “bail jury” to help decide the defendant’s danger to the community.

Legislators must address these issues, particularly as imprisonment and arrest become an increasingly popular way to respond to protests.


The Reliability of Drug Sniffing Dogs

Of the many things that make my Criminal Procedure students cynical about the Supreme Court, perhaps the most frustrating is that the Court has refused to quantify the probable cause standard. The Supreme Court’s grant of certiorari last week in Florida v. Harris gives the Court the perfect opportunity to at least place probable cause within some numerical band.

Harris is a particularly good vehicle for making the probable cause standard less fuzzy. In Harris, the Florida Supreme Court confronted the issue of when a dog’s positive alert gives the police probable cause to search a vehicle. Unlike in most assessments of probable cause, which involve informants or suspicious seeming individuals, police have data that quantifies the accuracy of drug sniffing dogs. A dog’s field history includes its rate of false positives, when a dog alerts to the smell of drugs that are not actually present in the vehicle. The Florida Supreme Court held that a dog’s field history must be introduced as part of the probable cause inquiry. If the lower court’s opinion is upheld, the Supreme Court should tell us what sort of false positive rate is too unreliable to permit a full search of a car.

Courts consistently and expressly eschew technical conceptions of probable cause in order to provide police officers with flexibility to exercise their judgment in unfolding situations. In addition, courts focus on whether an officer has a reasonable belief that a suspect has committed or is committing a crime. This metric allows for probable cause to be found in situations where one reasonable officer might assess an 80% likelihood that a suspect is driving drunk, for example, even if another reasonable officer might think there is only a 40% likelihood. We might be tempted to assume the courts require that a reasonable officer be able to believe a crime has been committed by greater than a 50% likelihood, but this has not been made explicit.  All officers must prove to a court assessing a vehicle search is a reasonable ground for belief of guilt.  Further, when a court is making a probable cause determination for itself in determining if a warrant should issue, it must decide only if there is a “fair probability that contraband or evidence of a crime will be found in a particular place.”  What is a fair probability?

In the context of drug detection dogs, where we have actual data on reliability, assigning a numerical value to probable cause — or at least to the maximum false positive percentage upon which an officer can rely — would add much needed clarity to Fourth Amendment law. It also does not undermine police officers’ ability to use their intuition, because the event precipitating a search is not an officer’s informed judgment, but the alert from a dog.

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Kovarsky on Martinez and the Roberts Post-Conviction Project

Lucky for us, my brilliant colleague Lee Kovarsky took some time out of his whirlwind schedule to help walk us through the Supreme Court’s post-conviction decision in Martinez v. Ryan.  I’ve blogged about Professor Kovarsky before–he is an expert on habeas corpus whose newest work, entitled “A Constitutional Theory of Habeas Power,” will be published by the Virginia Law Review.  He is also amidst writing a textbook  for Foundation Press entitled “Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation” (forthcoming 2013) (with Brandon Garrett).  Professor Kovarsky recently argued a habeas case before the Fifth Circuit and helped write the ABA Amicus Brief in Martinez.

Martinez and the Roberts Post-Conviction Project*

I. Overview

Almost under the radar, the Roberts Court has reconfigured the way this country conducts post-conviction review. Years from now, we may consider a case decided this Tuesday, Martinez v. Ryan, a seminal entry in that shift. Perhaps Martinez was reported so sparingly because it was so complicated, but its complexity shouldn’t obscure its importance. (Stephen Vladeck has a characteristically insightful explanation of Martinez up on SCOTUSBLOG.)

The “Roberts Post-Conviction Project” has two moving parts. First, the Project involves a series of decisions promoting state collateral review as the “main event” for post-conviction challenges. Second, and at the same time, the Project has generated incentives for states to provide more process and better lawyers in those proceedings. The Project is hardly a return to thick, Warren-era habeas review of state criminal procedure, but it does slightly moderate one rhetorical excess of Rehnquist post-conviction jurisprudence—the proposition that state judges are always as good as their federal counterparts at enforcing federal constitutional rights.

Criminal process for convicted state prisoners subdivides roughly into the following phases: (1) direct appellate review of the conviction; (2) a state post-conviction disposition subject to state appellate review; and (3) a federal habeas proceeding with federal appeals. For decades, Congress and the Supreme Court have been recalibrating federal habeas review to defer to state post-conviction outcomes. Most recently, in Cullen v. Pinholster (2011), the Supreme Court held that (generally) federal habeas relief could issue only on evidence presented to a state post-conviction court.

The problem is that, for decades, state post-conviction review—the first place that a prisoner may assert many important constitutional challenges to a conviction—has been a legal swamp of vague rules, spotty process, and substandard representation. Many prisoners litigate state post-conviction claims pro se, and many counseled prisoners enjoy no constitutional entitlement to competent representation. Even for strong constitutional claims, forfeiture often follows a state prisoner’s failure to successfully navigate unthinkably complex state post-conviction law either (1) without representation or (2) with a bad lawyer that the state underpays.

And federal habeas law imposes all sorts of severe penalties when state post-conviction representation goes predictably awry. For instance, the federal limitations statute was—until recently—unforgiving about lost portions of the limitations period attributable to even the most appalling state post-conviction representation. Moreover, at least pre-Martinez, when incompetent state post-conviction representation forfeited a claim on a state procedural ground, that claim would be inexcusably defaulted on federal habeas review.

The Court heard Martinez v. Ryan on October 4, 2011. Twenty-four State Attorneys General signed an Amicus Brief in support of Arizona, as did the United States. By mid-March 2012, the Court had still failed to announce a decision. It was clear that something serious was happening, but nobody had a good sense of what that something was. As it turns out, the prisoner won pretty big. Although the opinion stopped short of announcing a constitutional right to a state post-conviction attorney, its decision will nonetheless improve the representation provided at that phase of criminal process.

Kennedy wrote, and was joined by Roberts, Ginsburg, Breyer, Alito, Sotomayor, and Kagan. (Scalia and Thomas dissented.) The head count is a pleasant surprise for those who remain skeptical that Roberts and Alito are willing to break meaningfully from Scalia and Thomas on the harsh application of procedural rules on federal habeas review. Read More


Stanford Law Review, 64.2 (2012)

Stanford Law Review

Volume 64 • Issue 2 • February 2012

National Security Federalism in the Age of Terror
Matthew C. Waxman
64 Stan. L. Rev. 289

Incriminating Thoughts
Nita A. Farahany
64 Stan. L. Rev. 351

Elective Shareholder Liability
Peter Conti-Brown
64 Stan. L. Rev. 409

Harrington’s Wake:
Unanswered Questions on AEDPA’s Application to Summary Dispositions

Matthew Seligman
64 Stan. L. Rev. 469

Boumediene Applied Badly:
The Extraterritorial Constitution After Al Maqaleh v. Gates

Saurav Ghosh
64 Stan. L. Rev. 507