Noah interviews Professor Ari Ezra Waldman about students’ right to speak affirmingly about sexual orientation, same-sex marriage, and gay identity in schools.  Professor Waldman discusses recent cases in which students have been censored or punished for positive statements about their sexual orientation, and why he thinks current school speech doctrine requires such statements to be treated differently from statements that serve as identity harassment.

Noah and Matt discuss the recent Supreme Court oral arguments in Dorsey v. U.S. and Hill v. U.S.  Both cases ask whether the Fair Sentencing Act, passed to address the disparity between federal sentences for crack and powder cocaine possession, should be applied retroactively to defendants whose crimes were committed before the law was passed, but who had not yet been sentenced.  They look back at how the disparity came about, and whether even the lessened disparity is justified.

Some links related to the topics discussed on this week’s show:

Professor Waldman at Towleroad.com: Identity Harassment and First Amendment Rights at School

California Principal Ejects Gay Student from High School Pageant for Saying He Wants to Get Married

Lambda Legal: Couch v. Wayne Local School District

SCOTUSblog Argument Recap: A Dilemma Over Race

18 U.S.C. 3553 (sentencing factors), 21 U.S.C. 841 (drug quantities)

NYT: Abiding by the Fair Sentencing Act

Washington Post: Unjust Crack Penalties Continue to Plague Defendants

NYT: Supreme Court Weighs Revisions in Cocaine Case Sentences

Please email questions, comments, corrections, or suggestions to CRCLonline@gmail.com.  Thanks for downloading, and enjoy the show!

Episode 11 – Identity-Affirming School Speech and the Crack-Cocaine Sentencing Disparity

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Matt fills us in on the recent Supreme Court decision in Florence v. Board of Freeholders and the potential impact of a blanket rule allowing strip searches for jail intake even for minor offenses.  Andrew discusses the recent concern over Google’s unified privacy policy, the Consumer Online Privacy Bill of Rights, and efforts in Europe to establish a right to be forgotten.

Some links related to the topics discussed on this week’s show:

SCOTUSblog case page for Florence v. Board of Freeholders of Burlington County

Professor Noah Feldman responding to Florence at BloombergView

FTC Chairman Jon Leibowitz in the Washington Post

FTC Report on Protection Consumer Online Privacy

The Atlantic on Online Tracking

Andrew Mamo of this blog on the Right to Be Forgotten 

Andrew Mamo on the Consumer Privacy Bill of Rights

From the news round-up: Emily Bazelon on the commutation of the sentence of Shirley Ree Smith

Please email questions, comments, corrections, or suggestions to CRCLonline@gmail.com.  Thanks for downloading, and enjoy the show!

Episode 9 - Jail Strip Searches, Online Privacy, and the Right to Be Forgotten

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Some links related to the individual mandate and the health care oral argument:

Complete SCOTUSblog coverage of the week’s argument

The Nation – Obamacare: Not Dead Yet

Charles Fried says there is a “limiting principle”

Noah Feldman – Broccoli-Bungling Defense Hurts Health Care

Jeffrey Toobin says the law will most likely be struck down

Politico – If the law fails, what’s next?

Please email questions, comments, corrections, or suggestions to CRCLonline@gmail.com.  Thanks for downloading, and enjoy the show!

Episode 8 – The Individual Mandate and Juvenile Constitutional Rights

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The colloquium discussed three upcoming articles that will be published in Volume 47, Issue 2 of the Harvard Civil Rights-Civil Liberties Law Review.  Those articles are “Graham v. Florida and a Juvenile’s Right to Age Appropriate Sentencing” by Martin Guggenheim, “The United States Supreme Court Adopts a Reasonable Juvenile Standard in J.D.B. v. North Carolina for Purposes of the Miranda Custody Analysis: Can a More Reasoned Justice System for Juveniles Be Far Behind?” by Marsha Levick and Elizabeth-Ann Tierney, and “The Legal Significance of Adolescent Development on the Right to Counsel: Establishing the Constitutional Right to Counsel for Teens in Child Welfare Matters and Assuring a Meaningful Right to Counsel in Delinquency Matters” by Jennifer Pokempner, Riya Saha Shah, Mark Houldin, Michael Dale and Robert Schwartz.

Pre-publication drafts of each of the articles can be accessed by clicking on the articles’ titles above.  Video from the event and the poster advertising the event can be seen below.  In order to view the video, you will need to have Quicktime installed.  The video can also be downloaded by right-clicking here, and selecting “save link as.”

In 1953, a local chapter of the Knights of Columbus sought and obtained a special use permit from the U.S. Forest Service to lease a 25-by-25 foot area of land in the Flathead National Forest in order to install a painted stone statue of Jesus Christ.  Some of the members of the Knights of Columbus had served in World War II in the Army’s 10th Mountain Division and had been inspired by the religious shrines they encountered in the mountains in northern Italy.  Since the statue was installed in 1955, the statue has become a local landmark.  Skiers frequently stop to take pictures in front of it, and often decorate it with leis, Mardi Gras beads, ski helmets, and Hawaiian shirts.

Last May, the Freedom From Religion Foundation, a national atheist organization, discovered that the lease permit was about to expire, and put pressure on the Forest Service not to renew it.  In August, the Forest Service announced that it would not renew the permit.  The Forest Service’s decision provoked enormous outcry.  Over the next month, Flathead National Forest officials received over 95,000 comments from people across the country about whether the statue should be removed, including a letter advocating for renewal of the permit with more than 70,000 names attached.  Local residents created a “Save Big Mountain Jesus Statue” Facebook page, which received over 3,800 visitors and 3,000 comments in the first week.  Supporters of the statue held an “Occupy Big Mountain” rally.  United States Representative Denny Rehberg, a Montana Republican, even got involved. Among other things, he proposed federal legislation brokering a land swap, whereby possession of the land upon which the statue stands would be given to the Whitefish Mountain Resort in exchange for an equal amount of land being given to the Forest Service, and scheduled a hearing to discuss the bill.

After learning that the statue was eligible for inclusion on the National Register of Historic Places and seeing the public’s overwhelming show of support for the statue, on January 31, 2012 the Forest Service reversed its initial decision and decided to grant renewal of the permit for another ten years.  Shortly thereafter, the Freedom From Religion Foundation filed suit in a federal district court in Montana, contending that the religious figure is an unconstitutional government endorsement of religion.

Public displays of religion are ubiquitous.  All U.S. currency contains the national motto, “In God We Trust.”  The Pledge of Allegiance contains the words “under God.”  Congress opens each session with a prayer, and the Supreme Court begins each day with the phrase “God save the United States and this Honorable Court.”  Displays of religious symbols on public property, such as holiday displays and displays of the Ten Commandments, have led to a myriad of lawsuits alleging Establishment Clause violations.  Last month, for instance, Utah agreed to remove eleven Roman crosses that the Utah Highway Patrol Association had placed along state highways to honor Utah troopers killed in the line of duty, after the 10th Circuit Court of Appeals ruled that the crosses represented a state endorsement of religion.

The United States Supreme Court has considered the permissibility of public displays of religious symbols in a variety of contexts.  It most recently addressed the issue on June 27, 2005, when it handed down two seemingly inconsistent opinions.  In McCreary County v. American Civil Liberties Union, the Court required the removal of a Ten Commandments display inside two Kentucky county courthouses.  In Van Orden v. Perry, the Court found no problem with a six-foot-high monument of the Ten Commandments on the Texas State Capitol grounds.  In each case, Justices Rehnquist, Scalia, Kennedy, and Thomas voted in favor of the displays, while Justices Stevens, O’Connor, Souter, and Ginsburg voted to strike them down.  Justice Breyer provided the swing vote.

The contrasting results reached in McCreary County and Van Orden have left much confusion as to the constitutionality of public displays of religious symbols.  However, in his concurrence, Justice Breyer distinguished the two cases on four factual grounds.  Because the facts of the Freedom From Religion Foundation’s lawsuit in Montana more closely resemble those from McCreary County than Van Orden, the district court should order the removal of the Jesus statue from Big Mountain.

First, the Ten Commandments displays in McCreary County and Van Orden appeared in very different contexts.  In McCreary County, the Ten Commandments were initially hung in the courthouses in isolation.  Only after the ACLU filed a lawsuit were the displays placed among other documents.  In contrast, the Ten Commandments in Van Orden were surrounded from the beginning by 17 monuments and 21 historical markers.  Like in McCreary County, the Jesus statue stands alone on Big Mountain.

Second, the displays in McCreary County and Van Orden had very different histories.  In McCreary County, at a ceremony to commemorate the installation of the Ten Commandments, a pastor “testified to the certainty of the existence of God.”  Less than a month after the ACLU filed a lawsuit, the courts, at the direction of the county legislatures, surrounded the Ten Commandments with eight other documents whose only commonality was that they all contained religious references.  Following a court order to remove the displays pending resolution of the controversy, the courthouses put up a third display, this time surrounding the Ten Commandments with historical documents of legal significance.  The Supreme Court held that the historical evolution of the exhibits demonstrated that their predominant purpose was to advance religion.  In Van Orden, the Ten Commandments and the surrounding memorials were placed on the grounds of the state capitol with the express purpose of commemorating the “people, ideals, and events that compose Texan identity.”  The initial permit application for the Big Mountain Jesus statue proposed to “erect a statue of Our Lord Jesus Christ.”  A newspaper article published shortly before the statue was installed refers to it as a “shrine.”  Consequently, the erection of the statue had a clear religious purpose.

Third, in McCreary County and Van Orden, the impetus for installing the Ten Commandments came from different sources.  In McCreary County, the displays were installed entirely at the behest of the county legislatures.  In Van Orden, the Fraternal Order of the Eagles donated the display in an effort to popularize the movie The Ten Commandments.  While the statue on Big Mountain was also put up by a private organization, the two organizations are very different.  Justice Breyer emphasized that that the Fraternal Order of the Eagles was “primarily secular.”  Membership in the Knights of Columbus, by contrast, is limited to practicing male Catholics who “accept the teaching authority of the Catholic Church on matters of faith and morals, aspire to live in accord with the precepts of the Catholic Church, and are in good standing in the Catholic Church.”

Finally, the Ten Commandments display had gone unchallenged for a much longer period of time in Van Orden than in McCreary County.  In McCreary County, the display had been up for less than six months when the ACLU challenged its constitutionality in court.  In Van Orden, forty years had passed before any legal objection to the display was raised.  In this respect, the Jesus statue more closely resembles Van Orden, since it went unchallenged for nearly sixty years.  However, an impermissible public display cannot become permissible merely by virtue of its age.  As Justice Stevens noted in his dissent, “I doubt that a slow walk to the courthouse, even one that took 40 years, is much evidentiary help in applying the Establishment Clause.

Consequently, under the test articulated by Justice Breyer, the federal district court should find that the Big Mountain Jesus Statue violates the Establishment Clause, despite its popularity.  As Justice Jackson famously declared, “fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

The applicable law for recusal is 28 U.S.C. § 455, which states that a federal judge should remove herself from a proceeding if her “impartiality might reasonably be questioned,” or if the judge, as a prior counsel or adviser, expressed “an opinion concerning the merits of the particular case in controversy.”  The decision is typically left to the discretion of the judge – a standard ripe for political controversy.

Republican and like-minded interest groups have an obvious reason to push for Kagan’s recusal.  But objectively, should she? In her confirmation hearings, she denied having expressed an opinion on the merits of the healthcare law.  Yet, as Solicitor General, she was one of Obama’s top lawyers; it would be surprising if he didn’t consult with her about the law or its validity.  Further, Kagan exchanged emails with HLS professor Larry Tribe around the time the law passed, excitedly telling him that her “fingers and toes” were crossed that they had the requisite votes, which would be “simply amazing.”  Is it conceivable that Kagan participated at some level in the legislative strategy, and had personal feelings about it, yet never expressed an opinion on the bill’s constitutionality? Can her impartiality be defended?

If it is true that Kagan expressed an opinion on the merits, the dilemma she faces pits the integrity of the Court against what she (and many others) may see as a greater purpose: to fight for and protect a law she apparently believes in passionately.  She likely also feels loyalty to the man who put her on the court; after all, if this law is overturned, it might do serious damage to his reelection chances.  But should these considerations matter? What about the public’s confidence in an independent and objective judiciary?

Just this week, the Court denied a motion filed by Freedom Watch, a conservative advocacy group, requesting to argue for Kagan’s recusal.  The denial was unsurprising given that the prior week, Chief Justice Roberts had written a letter to the Senate Committee on the Judiciary announcing that the Court would not adopt the Code of Conduct which binds all other federal judges to a stricter recusal policy.  The basis for his decision is explained in his Year-End Report on the Federal Judiciary: the justices are “jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.”  Thus, he has “complete confidence” in his colleagues’ ability to make their own recusal decisions.  These developments do not guarantee Kagan will sit on the case, but do seem to signal that the court won’t easily submit to external political pressures on this issue.

She has given no indications that she is willing to recuse herself from the landmark case.  If she doesn’t, and the result is a 5-4 vote to uphold the law, there may be serious criticism and backlash.  If it was later revealed that she did express an opinion, she could even face impeachment.  But if there are 6 or more votes in favor of upholding, it is less likely to be a continuing issue.  Either way, Kagan’s status as a former Solicitor General is likely to continue to stoke recusal controversy as the Court works through a docket full of momentous cases in the coming months.

[Update2 - 1PM February 8] The Fifth Circuit has ruled 2-1 to lift the stay of Turner’s execution, and Mississippi officials say that they plan to carry out the execution as originally scheduled this evening at 6PM.  Turner’s petition to the Supreme Court is still pending.

[Update - 7PM February 6] U.S. District Judge Carlton Reeves in Jackson, Mississippi has blocked Turner’s execution until at least February 20th.  The order is a response to the argument from the Louisiana Capital Assistance Center that Mississippi corrections officials have denied Mr. Turner access to mental health professionals to evaluate his mental illness.  The evaluations could be critical to the success of Mr. Turner’s petition to the Supreme Court, described in the original post below.

[Original - 4:30PM February 5] Barring action by the United States Supreme Court or the governor, Edwin Hart Turner will be executed by the state of Mississippi at 6 p.m. on Wednesday, February 8, 2012. Turner, represented by attorneys from the Louisiana Capital Assistance Center, has filed a petition for a writ of certiorari to the Supreme Court arguing that the pending execution would violate the Eighth Amendment’s prohibition on cruel and unusual punishments because at the time of his offense Mr. Turner “suffered from a serious mental illness that substantially impaired his ability (a) to appreciate the nature, consequences, or wrongfulness of his conduct, (b) to exercise rational judgment in relation to conduct; or (c) to conform his conduct to the requirements of the law.” Pet. at i. This formulation of the effect of mental illness on criminal culpability is taken directly from a resolution adopted by the American Bar Association recommending that defendants who suffer from the described effects of mental illness should not be eligible for capital punishment. Though the Supreme Court has not yet placed a categorical bar on the execution of the mentally ill, Mr. Turner can certainly draw hope from recent decisions by the Court placing such categorical bars on the execution of the mentally retarded and minors. The current members of the Court may be receptive to the argument made in Mr. Turner’s brief, and should they grant the petition, Mr. Turner’s case may lead to a decision demanding a more humane system for the imposition of capital punishment.

Mr. Turner’s great-grandmother was diagnosed as schizophrenic and committed to the state mental hospital three times. Pet. at n. 14. Her daughter was also committed to the hospital three times for schizophrenia, the third time for four years. Id. Edwin Turner, Mr. Turner’s father and namesake, committed suicide by firing a gun into a shed full of dynamite. Id. When he was eighteen years old, Mr. Turner attempted suicide by firing a rifle into his mouth, which left him with permanent and severe facial disfigurement. Pet. at 7. Since that time, Mr. Turner has worn a towel wrapped around his face to hide his disfigurement, which was true both when he committed the murders and when he appeared in court. Pet. at 8. After being hospitalized for slitting his wrists, Mr. Turner was readmitted to the hospital by court order and treated for a major depressive disorder and personality disorder. Pet. at 8-9. The first cert petition on behalf of Mr. Turner focused on the question of whether his trial lawyers missed evidence that Mr. Turner’s mental illness was not “well controlled” after his release from the hospital, as stated by the defense expert. 2011 Pet. at 4-5. Those close to Mr. Turner recall him staying up all night writing because “his mind was going too fast.” Though normally self-conscious, at one point shortly before the crimes he stripped off his clothes and danced in bar. Only a few days before the crimes he broke down sobbing uncontrollably, at various times saying both “I am not a bad person,” and “I am a bad person,” and then woke up the next morning with no memory of his actions. 2011 Pet. at 6.

Six weeks after his release from the court ordered hospitalization, on the night of December 12, 1995, Mr. Turner and his friend, Paul Murrell Stewart, decided to rob a local truck stop. Mr. Turner shot Eddie Brooks, an employee at the truck stop, in the chest and then in the head. The two men moved on to a gas station, where Stewart went inside to rob the store, and Mr. Turner remained outside and shot Everett Curry, pleading for his life, in the head. In addition to his “signature towel,” Mr. Turner committed the murders while wearing a jacket that said “Turner.” The robberies netted a total of about $400, money of which Mr. Turner was not in need. Stewart testified against Mr. Turner and received a life sentence, while Mr. Turner was convicted of two counts of capital murder and sentenced to death on each count. Stewart has written a letter to Mr. Turner about the night of the murders stating “I thought you went completely insane, and didn’t think you knew what you were doing!” 2011 Pet. at 7.

Mr. Turner’s argument to the Supreme Court is that “the death penalty is reserved for a narrow category of crimes and offenders,” and his execution would be a violation of the Eighth Amendment because his mental illness makes it inappropriate to classify him “among the worst offenders.” Roper v. Simmons, 543 U.S. 551, 569 (2005); see also Pet. at 17. In Roper, the Court placed a categorical prohibition on the execution of juvenile defendants. The Court in Roper quoted from Atkins v. Virginia, decided only three years earlier, to declare that “[c]apital punishment must be limited to those offenders. . .whose extreme culpability makes them ‘the most deserving of execution.’”Roper, 543 U.S. at 568 (quoting Atkins, 536 U.S. 304, 319 (2002)); see also Pet. at 17. The Court in Atkins had imposed a similar categorical prohibition on the execution of the mentally retarded. 536 U.S. at 321. Both Atkins and Roper pointed to the reduced personal culpability of the two classes of defendants, a trait, Mr. Turner’s attorneys argue, that is shared by the mentally ill as a result of “substantial impairment of cognitive processing or impulse control.” Pet. at 18. The petition additionally argues that given both this reduced culpability and reduced ability to act rationally based on available information, the execution of the mentally ill, like the execution of the mentally retarded or juveniles, fails to achieve either an appropriate retributive or deterrent effect. Pet. at 19; see also Atkins, 536 U.S. at 319; Roper, 543 U.S. at 571.

Given the close similarities between the reasoning the Court applied in Atkins and Roper, and the applicability of that reasoning to the mentally ill, Mr. Turner’s case could present an opportunity for the Court to expand on the types of mitigating characteristics that qualify defendants for a categorical exclusion from capital punishment. Atkins was a 6-3 decision, written by now retired Justice Stevens. Stevens’s opinion was joined in its entirety by Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer. Justices Rehnquist, Scalia, and Thomas were in the minority, all three joining dissenting opinions by Rehnquist and Scalia. Roper was a 5-4 decision, with O’Connor joining the minority, though writing only for herself in dissent. Critically though, Justice Kennedy wrote the majority opinion in Roper overturning the Court’s contrary ruling in Stanford v. Kentucky, 492 U.S. 361 (1989). Justice Kennedy again wrote for the same majority in Panetti v. Quarterman, 551 U.S. 930 (2007) (Justices Roberts and Alito had replaced Justices Rehnquist and O’Connor in the minority). In Panetti, Kennedy begins by quoting Ford v. Wainwright, 477 U.S. 399, 409-10 (1986): “[T]he Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.” 551 U.S. at 934 (alteration in original). Kennedy goes on to engage in what the dissent calls “bend[ing] over backward” to allow Panetti to proceed on a second habeas petition. Id. at 963 (Thomas, J., dissenting). Justice Kennedy concludes that Panetti was denied adequate procedures to determine his competency to be executed, id. at 952, and that the Fifth’s Circuit’s definition of incompetency was too restrictive to afford the proper Eighth Amendment protection, id. at 960.

The two Kennedy opinions point to the conclusion that the swing Justice is concerned about narrowing the conditions under which the death penalty can be imposed, and does not feel as constrained as the more conservative Justices by an overriding concern for constitutional federalism or the strict requirements laid down in the Anti-terrorism and Effective Death Penalty Act limiting the federal courts’ ability to review state capital sentences. If this is a valid conclusion from Kennedy’s prior opinions, Mr. Turner should have hope that the Court will be interested in hearing his case, and may in fact rule in his favor. Though the composition of the Court has changed since Atkins, Roper, and Panetti, there is likely still a five-Justice majority willing to be critical of the application of the death penalty in the face of mitigating circumstances. Since Panetti, majority Justices Stevens and Souter have been replaced by Obama appointees Sotomayor and Kagan. In 2011, the Court decided Cullen v. Pinholster, holding that AEDPA requires a federal court reviewing a habeas petition from a capital sentence to review only the record available to the state courts in making a determination of error. 131 S. Ct. 1388, 1398. Justices Kennedy and Kagan both joined this part of the majority opinion. Justice Sotomayor dissented.

The majority also held that on the record before the state courts, the defendant failed to show that the state courts had misapplied Strickland v Washington in holding that trial counsel’s failure to adequately pursue evidence of mental illness did not qualify as ineffective assistance of counsel. Id. at 1403. Though Justice Kennedy also joined this part of the majority opinion, Justice Kagan did not. Justices Kagan and Ginsburg joined the part of Justice Sotomayor’s dissent concluding, inter alia, that “[h]ad counsel conducted an adequate investigation, the judge and jury would have heard credible evidence showing that Pinholster’s criminal acts and aggressive tendencies were attributable to a disadvantaged background, or to emotional and mental problems. They would have learned that Pinholster had the kind of troubled history we have declared relevant to assessing a defendant’s moral culpability.” Id. at 1432 (Sotomayor, J., dissenting) (internal quotations and citations omitted). Justice Sotomayor’s impassioned dissent, and Justice Kagan’s joining of that dissent, indicate that the two junior Justices are at least likely to replace their predecessors in a five-Justice majority critical of the application of capital punishment to the mentally ill.

Four Justices have to vote to grant a petition for certiorari, and of course five have to vote to decide a case in a certain way. If Justice Kennedy continues his trend of voting to exclude less culpable defendants from receiving capital sentences, and if Justices Kagan and Sotomayor share their predecessors tendencies, then there is likely a five-Justice majority to establish a categorical prohibition on the execution of the mentally ill. First though, four Justices have to vote to hear the case. Justice Kagan has said in the past that she has has no “moral qualms” about the death penalty, and Justice Kennedy joined the majority in its entirety in Pinholster. If there are two of the potential five Justices that are not ready to hear a case asking for further restrictions on the application of capital punishment, the case may never make it before the Court in time to save Mr. Turner. The cert petition itself may even frighten some Justices about the scope of the issues potentially on the table if they chose to hear the case because the petition argues first that there is an evolving standard of decency against the execution of the mentally ill, and then that there is in addition an evolving standard against the death penalty itself. Pet. at 14. Ultimately though, Mr. Turner’s argument is directly within the line of reasoning applied in Atkins and Roper, and those of us who desire a more humane and justified criminal justice system can hope along with Mr. Turner that his petition will be granted in time to save his life.

Harvard CR-CL is proud to publish the first episode of the Harvard Civil Rights-Civil Liberties Podcast!  We’re calling it Episode 0 because we had originally planned for this just to be a trial recording.  In the end, we had so much fun doing it and the discussion was so good, we felt like it would be a shame to let it go to waste.  That being said, it is still very much a work in progress, and we welcome your thoughts on any aspect of the show.  Please email questions, comments, corrections, or suggestions to CRCLonline@gmail.com.

In this inaugural episode, Senior Online Editor Noah Kaplan talks with Executive Online Editor Matt Giffin about the recent Supreme Court decision about GPS tracking units, United States v. Jones, and about the response to the proposed copyright protection legislation SOPA and PIPA.  Future episodes will feature similar discussion, in addition to guest experts.  If there is a topic you would like hear to on the show, feel free to let us know.  Thanks for downloading, and enjoy the show!

Episode 0 – CR-CL Podcast – Jones and Sopa

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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.

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.