The case Ms. Andrieu was defending, Smith v. Cain, arose from a mass murder in 1995.  Juan Smith was convicted on the crime based solely on the eyewitness testimony of a survivor.  Somewhat unbelievably, prosecutors presented no physical evidence – no fingerprints, no weapons, no anything – that would link Smith (or anyone else) to the murders.

Unbeknownst to Smith, the prosecution’s witness expressed reservations about his ability to identify his assailant.  Immediately after the shootings, the witness said that he could not describe his attacker beyond the fact that the shooter was black.  Later, he said that the assailant had a “[m]outh full of gold.”  After that, however, the witness said that he had not seen the shooter’s face and could not identify him.  Though the witness eventually named Smith as his attacker, the identification came after he had seen Smith’s picture in a newspaper article naming Smith as a suspect.  Moreover, notes made contemporaneous to the ID noted that the witness felt “harassed” and pressured to comply with police’s request.

Ms. Andrieu attempted to explain away the D.A.’s failure to turn over the evidence by asserting its immateriality.  Under Brady v. Maryland, the prosecution need only turn over evidence that is “material” to the case – evidence likely to affect its outcome.  Justices Ginsburg and Kennedy both stated their disbelief that the evidence in question would be immaterial.  Chief Justice Roberts said, “If you were the defense lawyer, you really would like to have that statement where he said, ‘I couldn’t identify them [the shooters].’”  When pressed, Ms. Andrieu vacillated some, stating that a “prudent prosecutor” would have divulged the information.  Justice Scalia was more blunt: “Of course it should have been turned over.”

The justices’ tenor at oral arguments suggests that the Court was not so much seeking to resolve a complicated nuance of Brady jurisprudence, but rather sought to chastise publicly the New Orleans District Attorney’s Office, now notorious for its underhanded trial tactics and ethical violations.  Beginning in 1995, the Court has admonished the office three times for “blatant and repeated” ethical violations.  Since 1990, ten defendants convicted in New Orleans parish have been exonerated based on Brady violations alone, including four capital defendants.  Faced with an office that refuses to change its ways, the Court may have opted to shame the office into reform.  Indeed, commentators have referred to the office’s performance at oral arguments as a “disaster.”  Based on the justices’ questioning, New Orleans better learn quickly: the Court already seems to have lost its patience.

To listen to the oral arguments, click here.

Justices’ skepticism was two-pronged.  First, several justices questioned Guerriero’s assertion that existing rules of evidence were insufficient to screen for unreliable evidence.  “What is the difference between what you are asking for and what already exists in the law?” Justice Breyer asked.  Under Federal Rule of Evidence 403, Breyer noted, a judge may exclude evidence that she thinks is unduly prejudicial or misleading.  Justice Ginsburg pointed to other safeguards: “You can ask the judge to tell the jury: ‘Be careful; eyewitness testimony is often unreliable.’  You can point that out in cross-examination.”  The necessity for a new rule, these justices posited, was dubious.

Other justices criticized Guerriero’s proposed rule as excessively narrow.  “What is magic about suggestiveness as opposed to all of the other matters that could cause eyewitness identification to be wrong?” Justice Scalia pondered.  Guerriero’s rule would exclude a witness’s identification only when given under circumstances suggestive of a defendant’ guilt.  If the witness’s identification was unreliable for some other reason – because the witness was standing far away from the crime scene such that she could not see the culprit clearly – the evidence would be admissible.

Justice Scalia also questioned why Guerriero’s rule would apply only to eyewitness testimony given under suggestive circumstances.  “Let’s say . . . that the killer had left a message on the . . . phone and the police in some manner create suggestiveness that causes a witness to identify that as the voice of the killer.  You really think that we would say, well, this is not eyewitness testimony; eyewitness testimony creates a special risk?”  Guerriero suggested that his rule followed from Court precedent, in which the justices have said that eyewitness testimony is special.  “[W]e don’t mean it,” Scalia quipped.

In many ways, Guerriero’s argument proved too much.  If the Constitution requires the exclusion of unreliable evidence, the criminal justice system would be turned on its head.  A host of unreliable evidence is admitted at every trial, yet we as a society are comfortable with it, because we trust jurors’ ability to gauge the dependability of what is presented to them.  Once we begin questioning our faith in juries – even if that skepticism is merited – the foundation of the justice system begins to crumble.  The justices seem to be willing to preserve the myth of juror competence – at least in the near term – lest the system fall apart.

To read a transcript of the oral arguments, click here.  To read the parties’ briefs, click here.

In 2008, Joffre Ullon called police to report that his wife had seen a man breaking into cars outside their Nashua, New Hampshire apartment complex.  When police arrived at the scene, they discovered Barion Perry carrying two car stereo amplifiers across the complex’s parking lot.  Perry told police that he had found the amplifiers on the ground and was simply moving them out of the way.

While Perry was talking to police, Ullon and his wife were discussing what they had seen with another Nashua officer.  Ullon’s wife stated that the man she had seen breaking into the cars was “tall” and “African-American.” When pressed for details, Ullon’s wife looked out the window, pointed to Perry, and identified him as the culprit.  At the time of the identification, Perry was standing next to a Nashua police officer.

At trial, Perry moved to exclude the identification, claiming that the evidence’s admission would violate his due process rights.  Perry asserted that his proximity to police at the time of the identification colored the witness’s memory by suggesting that he was a person of interest in the police’s investigation.  The trial court disagreed.  Without ruling on whether the circumstances surrounding Perry’s ID were suggestive of guilt, the court asserted that Perry could not mount a due process claim because the suggestive circumstances were not “intentionally orchestrated by police.”  A defendant may challenge a witness’s ID only if its reliability is called into question by “improper state action.”  Here, the circumstances of which Perry complained were a matter of happenstance, meriting the identification’s admission.

The issue before the Supreme Court is whether eyewitness identifications must be excluded whenever the identification was made under circumstances that make the ID unreliable.  As it stands, exclusion is mandated only when police themselves are responsible for the suggestive circumstances.

The question turns in large part on the ill the exclusionary rule is designed to cure.  Perry argues that the Court should be concerned with reliability.  “It is the likelihood of misidentification which violates the defendant’s right to due process,” Perry declares.  In contrast, the State claims that the exclusion of unreliable eyewitness testimony is merited only to the extent that it deters police misconduct.  Arguing on behalf of New Hampshire, the United States asserts, “Police involvement is a necessary prerequisite for a due process analysis into the reliability of an identification.”  Only after a court has determined that police misconduct created circumstances “unnecessarily suggestive” of a defendant’s guilt need the court engage in an inquiry into the reliability of the resulting identification.

New Hampshire’s rule is the easier one to administer.  Assessing the reliability of an ID is a tricky task.  Indeed, Perry does not propose a standard for answering “how suggestive is too suggestive?”  By saving the reliability inquiry until after a court has assessed police misconduct, judges can screen out many complicated due process claims.

Adopting such a rule, however, leaves the Court in an awkward position.  In 1967, the Court conceded: “The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.”  Modern psychology has only confirmed the Court’s intuition.  Study after study has substantiated the inaccuracy of eyewitness testimony, such that tighter rules must be enacted before it can be admitted at criminal trials.  Perry presents an opportunity for relatively modest reformation: when a defendant can point to concrete facts undermining the reliability of an ID, the prosecution must turn to alternative evidence in order to prove its case.  At least in this narrow class of cases, administrability must give way to accuracy.

While it is easy to dismiss these candidates’ calls for reform as political pandering, the proposals nonetheless evoke many Americans’ longstanding discomfort with an appointed judiciary, within which power is exercised by individuals who remain unaccountable to voters.  Indeed, concern about judges’ lack of accountability reached a fever pitch in the 19^th century, causing a majority of states to move from appointed to elected state judiciaries and/or reducing the terms of office for state and local judges.  The impetus for reform stemmed from citizens’ belief that subjecting judges to public scrutiny would force adjudicators to write opinions that tracked the law, not their politics.  As Foster Hooper proclaimed at the 1853 Massachusetts constitutional convention, “[I]f you provide that [judges] shall come before the people for reelection, they will take care that their opinions reflect justice and right, because they cannot stand upon any other basis.”*  Hooper and others believed that voters desired a fair and independent judiciary and would therefore vote out of office judges who failed to live up to those standards.

In actuality, the move from appointed to elected judiciaries caused judges to track public opinion – not the law.  Over the last 50 years, judicial elections have been criticized as an instrument undermining judicial impartiality.  “[I]f judges are subjected to regular election,” declared Justice Sandra Day O’Connor, “they are likely to feel that they have at least some stake in the outcome of every publicized case.”  Statistical studies suggest that elected judges are loath to assume unpopular positions in controversial cases, particularly death penalty appeals.  As former California Supreme Court Justice Otto Kaus lamented, “There’s no way a judge is going to be able to ignore the political consequences of certain decisions, especially if he or she has to make them near election time.”

By advocating for a more accountable judiciary, the Republican presidential candidates are bucking a trend favoring increased judicial independence – a trend propagated by conservative jurists like Justice O’Connor.  The effect of these reforms, however, may work against the policy goals these candidates seek to further.  As NYU professor Barry Friedman points out in the Post, eviscerating the power of the federal judiciary would increase the influence of state courts, which tend to be more liberal than their federal counterparts.  Professor Friedman’s research presents a conundrum.  Republican candidates appear to advocating for judicial reform as a means to further a conservative political agenda.  Faced with the prospect that “the People” are not so conservative after all, the future Republican nominee may quiet the calls for an accountable bench.

*  Official Report of the Debates and Proceedings in the State Convention, Assembled May 4^th, 1853 to Revise and Amend the Constitution of the Commonwealth of Massachusetts (Boston: 1853), 700.

At oral arguments, Thomas Goldstein, a lawyer for the petitioner, struggled to articulate precisely the procedure he was asserting to be unconstitutional.  To some justices’ surprise, Goldstein conceded that if prison guards observed inmates disrobe from across the room, their actions would not violate the Constitution.  Rather, the constitutionality of a search hinged on the proximity between the guard and the inmate during a nude inspection.  “Are you suggesting,” Justice Sonia Sotomayor interjected, “[i]t’s okay to stand five feet away, but not two?”  Goldstein would not answer “how close is too close”; however, he affirmed that the constitutional violation in the case arose from the guards’ close proximity to the petitioner while searching him.

Several of the justices seemed surprised by other concessions Goldstein made during oral arguments.  For instance, Goldstein suggested that a policy whereby close-range strip searches were performed by medical professionals would be constitutional.  “If you’re examined close up by someone who has a medical degree, it’s okay?” Justice Antonin Scalia questioned.  “And on the other hand, if it’s someone who does not have a medical degree, it’s not okay?”  Goldstein answered affirmatively.  Justice Scalia stated that he failed to see Goldstein’s distinction.

Carter Phillips, counsel for the prisons, also received some pointed questions from the bench.  A number of justices expressed their skepticism that the prisons had an interest in subjecting all inmates – even those charged with only minor offenses – to close-range strip searches.  Justice Stephen Breyer referred Phillips to studies showing no increase in contraband discovered when prison officials moved from a policy whereby guards strip searched all inmates upon entering the facility to one in which guards were required to have “reasonable suspicion” before a search.  “I understand contraband is serious,” Justice Sotomayor explained.  “But most of the studies point to it not being on intake, but coming in through guards, coming in through contact visits.  The great cause today is that from corrupt correction officials.”  Phillips countered, asking the Court to rely on its “common sense,” not scientific studies.

To listen to the entirety of the oral arguments in Florence, click here.  To read the petitioner and respondents’ briefs, click here.

As of last year, Tennessee law requires voters to present a valid, government-issued ID before casting a vote in state and federal elections.  To comply with the mandate, Cooper – who has voted in every election for which she’s been eligible, save one – went to a state Driver Service Center to get her free ID.  To confirm her identity, Ms. Cooper brought with her a rent receipt, a copy of her lease, her voter registration card, and her birth certificate.  This documentation was deemed insufficient, however, and her request for an ID card was denied.  A clerk at the Service Center told Ms. Cooper that he could not process her request as the birth certificate she presented listed her maiden – not her married – name.  If Ms. Cooper wanted to vote, she had to return to the Center with her marriage certificate.

Ms. Cooper’s experience at the Service Center has renewed the debate over Tennessee’s controversial ID requirement.  In an interview with the Chattanooga Free Times Press, State Representative Tommie Brown denounced the Republican-backed measure as a means to “suppress the vote” among the elderly, the poor, and racial minorities (Ms. Cooper happens to be black).

State officials have already begun back-pedaling.  In an interview with the Nashville Scene, Jennifer Donnals, a spokesperson for the Tennessee Safety Department, explained that Ms. Cooper’s situation should have been handled differently.

[T]he clerk was following policy for issuing photo IDs, but we think that the clerk could have taken some extra steps to help this woman in this situation.  But that is the policy.  If someone comes in with the birth certificate that does not have their correct last name, then there needs to be some supporting document to prove that’s her last name.

Asked what documents Ms. Cooper needed to bring when she returned to the Service Center, Donnals answered, “Every situation is different.”

The Safety Department’s response to Ms. Cooper’s experience is troubling for a number of reasons.  First, it is not entirely clear that state officials know what documents voters need to present before receiving a state-issued ID.  The Service Center clerk apparently though that Ms. Cooper needed present a marriage license, but Donnals suggests that other documentation would have sufficed.  Second, the Tennessee ID requirement makes it appreciably harder for women to vote in the state than men.  Women who give up their maiden names must present additional documentation to receive their mandated ID cards, yet men can escape the time, effort, and travel necessary to fulfill this requirement.

Finally, the Safety Department’s proposed solution to Ms. Cooper’s situation is wholly unsatisfying.  Essentially, Donnals proposes that processing clerks simply “try as hard as they can” to get voters their ID cards, exercising good judgment in a given situation.  Malleable licensing procedures have been repeatedly decried by the Supreme Court, at least in the First Amendment context.  In Forsyth County v. Nationalist Movement, the Court overturned a state licensing system affording municipal workers considerable discretion in deciding to issue parade permits.  Unchecked discretion, the Court feared, could lead to content discrimination.  The government could grant permits to groups promoting speech that it liked, while denying licenses to groups espousing disfavored opinions.

The Tennessee law allows for content discrimination of a different sort.  A clerk may “give it her all” to secure an ID card for an applicant whose demographics suggest that she will vote for the clerk’s preferred candidate, yet adhere to the strictures of the law’s requirements when the applicant’s politics seem less amenable.  If discretion is disallowed in the context of free speech, it should also be eschewed in the context of voting.  Tennessee cannot solve its problems regarding the ID law simply by asking state workers to be more cooperative.  Greater, institutional changes are necessary to protect certain classes of voters from disenfranchisement.

Though Cooper’s behavior was by all accounts egregious, his attorney’s conduct was pretty bad as well.  Before trial, the prosecution offered Cooper a favorable plea deal, recommending a term of years well below that which Cooper would have likely received if convicted at trial.  Cooper’s attorney advised him, however, to turn the deal down because, in his opinion, Cooper could not be convicted of the charged offenses, having shot his victim below the waist.  If that argument seems silly, it’s because it is.  The advice Cooper received was patently false, and as an appellate court later declared, “objectively unreasonable.”  Eschewing the plea deal, Cooper was convicted of assault and sentenced to a term of years greater than the minimum sentence he would have received under the proffered plea.  Cooper appealed, alleging ineffective assistance of counsel.  The Sixth Circuit overturned Cooper’s conviction and ordered the State to either re-offer the plea deal or release Cooper from prison.

Cooper’s case begs the following question: when a criminal defendant turns down a plea deal based on his attorney’s ignorance of the law and subsequently receives a harsher sentence after trial, can he seek to overturn his sentence, alleging ineffective assistance of counsel?

Perhaps not.  To make out a claim for ineffective assistance of counsel, a defendant must show that he was deprived of a “substantial or procedural right to which the law entitles him.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).  It is not clear what right Cooper was deprived of.  Cooper had no constitutional right to a plea bargain.  Indeed, even if such a bargain were reached, there was no guarantee that a judge would have accepted it.  In the plea-deal context, the prosecution merely recommends a sentence to the judge, who remains free to impose a harsher sentence if she so chooses.  It is a distinct possibility that Cooper could have accepted the deal only to have the judge impose the very same sentence he is now contesting.

The approach described above, however, may be overly formalistic.  Cooper points out that ineffective counsel can negate a guilty plea, as the Supreme Court ruled in Padilla v. Kentucky, 130 S. Ct. 1473 (2010).  Why then shouldn’t ineffective counsel negate a not-guilty plea?  The State would point to the fact that by pleading guilty, a defendant gives up his constitutional right to a trial.  By pleading not guilty, however, a defendant gives up nothing.  Rather, by pleading not guilty, a defendant is asserting his constitutional right to a trial.  But is that distinction satisfying?  Both Padilla and Cooper received bad advice.  Both Padilla and Cooper would have altered their decision had they been provided with competent advice.  Yet only Padilla gets a do-over?  The result may follow from existing precedent, but a tinge of unfairness remains.  The Supreme Court has the chance to rectify that unfairness by structuring a new rubric for ineffective counsel claims in the coming months.  Many are hoping that they do.

In late 2006, Bradley Johnson, a San Diego County math teacher and sponsor of the school’s Christian club, received complaints regarding two large banners displaying phrases including: “IN GOD WE TRUST,” “ONE NATION UNDER GOD,” “GOD BLESS AMERICA,” “GOD SHED HIS GRACE ON THEE,” and “All men are created equal, they are endowed by their CREATOR.”  The school’s principal ordered Johnson to remove the signs – a demand Johnson believed infringed upon his free speech rights.

The Ninth Circuit disagreed.  The ruling has drawn attention because the objectionable posters all contained quotes taken from the national motto, the National Anthem, and the Declaration of Independence.  From a legal standpoint, however, the ruling is largely uncontroversial.

Why didn’t the school district’s action violate Johnson’s free speech rights?

Johnson is a government employee and, as such, faces restrictions regarding what he can say in the classroom.  As the Ninth Circuit noted, “Just as the Constitution would not protect Johnson were he to decide that he no longer wished to teach math at all, preferring to discuss Shakespeare rather than Newton, it does not permit him to speak as freely at work in his role as a teacher about his views on God, our Nation’s history, or God’s role in our Nation’s history as he might on a sidewalk, in a park, at his dinner table, or in countless other locations.”

As a public school teacher, Johnson serves as the government’s mouthpiece: he is the Government’s voice in the classroom.  Accordingly, the Government gets a say in what Johnson gets to say – at least within the scope of his employment.  The fact that Johnson may have had some freedom to choose what he displayed in his classroom did not change the reality that the Government – not Johnson – was responsible for the speech that appeared on his classroom’s walls.

Did the school district violate the Establishment Clause by ordering Johnson to take down his posters?

The Establishment Clause requires “government neutrality” with respect to religion.  Stated simply, the Government may not “place its prestige, coercive authority, or resources behind a single religious faith or behind religious belief in general.”  Nor may it “be overtly hostile to religion.”  Johnson argued that the school district’s directive to remove his posters evinced hostility toward religion and was thus unconstitutional.

The Ninth Circuit disagreed.  Legal precedent holds that governmental actions taken to avoid potential Establishment Clause violations do not represent hostility toward religion.  Since a reasonable observer might have construed Johnson’s posters – with their repeated references to God and use of disproportionately large font to spell out words like “CREATOR” – as religious endorsements, the school district’s actions were not unconstitutional.

What about other purportedly religious displays in the school?

On appeal, Johnson argued that other teachers at his school decorated their classrooms with other forms of religious iconography, including Tibetan prayer flags and a Malcolm X poster.  By ordering him to remove his posters but not the other religious symbols present at the school, officials were sending a message of hostility toward Christianity.

Again, the Ninth Circuit disagreed.  The fact that these other displays may have had some religious content does not mean that they ran afoul of the First Amendment.  Rather, “[e]ach [display] would be violative [of the Constitution] only if used to endorse or inhibit religion.”  Because depictions of Malcolm X and Tibetan prayer flags do not send the same kind of overtly religious message as the word “God” written repeatedly in all caps across a poster, their presence in the school was unobjectionable.

A New York Times’ analysis of resumes of successful applicants to attorney positions in the Civil Rights Division revealed that Obama-era hires were more likely to have worked previously at civil rights organizations like the NAACP Legal Defense and Education Fund and the ACLU than were Bush-era hires.  While DOJ is using civil rights experience as a job qualification for positions in a Division whose mission is to “uphold the civil and constitutional rights of all Americans,” some are crying foul at this change in hiring policy, arguing that it is a means of packing the Division with left-leaning lawyers.

The New York Times writes:  “Robert Driscoll, a Bush administration official at the division who left before the hiring scandal, said that a policy of allowing professional civil rights lawyers to make hiring decisions based on civil rights experience was tactically ‘brilliant’ because it would result in disproportionately liberal outcomes without any need for interference by Obama political appointees. . . . But Joseph Rich, a former voting rights section chief who left during the Bush administration, argued that hiring people to enforce civil rights laws by looking for previous experience working on civil rights matters was not the same thing as looking for a particular political ideology.  ‘You’re not hiring people because they are liberal,’ Mr. Rich said.  ‘You’re hiring them because they have terrific experience in civil rights, and that’s what you need.’”

On June 1st, the Republican-controlled House Judiciary Committee held its first oversight hearing on the Civil Rights Division.  Assistant Attorney General Thomas E. Perez testified.

From SCOTUSblog:  “The key to the Court majority’s opinion, written by Justice Anthony M. Kennedy, is that there is a clear-cut distinction between taxpayer lawsuits that challenge direct government spending to aid religion (still allowed, apparently, but perhaps only in the narrowest way), and lawsuits that challenge the use of a tax credit as an indirect way of channeling government tax revenues into parochial education (possibly, no longer allowed).”

Justices Ginsburg, Breyer, and Sotomayor joined Justice Kagan in her dissent.

Read the full SCOTUSblog post.