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SCOTUS Criminal Opinions – January 10-11, 2012

SCOTUS Criminal Opinions – January 10-11, 2012

The Supreme Court of the United States done us right good – two days, four opinions with criminal-law implications.  We may not like them, but final rulings are always a good thing.  Let’s dig in.

We were waiting for Perry v. New Hampshire after our writing on eyewitness testimony, and now we have it.  Here’s the operative facts:

Around 3 a.m. on August 15, 2008, the Nashua, New Hampshire Police Department received a call reporting that an African-American male was trying to break into cars parked in the lot of the caller’s apartment building. When an officer responding to the call asked eyewitness Nubia Blandon to describe the man, Blandon pointed to her kitchen window and said the man she saw breaking into the car was standing in the parking lot, next to a police officer. Petitioner Barion Perry’s arrest followed this identification.

The question presented through the appeals is framed by this:  The trial court must first decide whether the police used an unnecessarily suggestive identification procedure; if they did, the court must next consider whether that procedure so tainted the resulting identification so as to render it unreliable and thus inadmissible.

From the Syllabus:

The Constitution protects a defendant against a conviction based on evidence of questionable reliability, not by introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be unworthy of credit. Only when evidence “is so extremely unfair that its admission violates fundamental conceptions of justice,” Dowling v. United States, 493 U. S. 342, 352 (internal quotation marks omitted), does the Due Process Clause preclude its admission.

You can see the Court wanting to rely on the jury to discern the weight to give the identification rather than involving the trial court to handle its admission as a matter of law.  The Court underscored this position:

Perry’s position would also open the door to judicial preview, under the banner of due process, of most, if not all, eyewitness identifications.  There is no reason why an identification made by an eyewitness with poor vision or one who harbors a grudge against the defendant, for example, should be regarded as inherently more reliable than Blandon’s identification here. Even if this Court could, as Perry contends, distinguish “suggestive circumstances” from other factors bearing on the reliability of eyewitness evidence, Perry’s limitation would still involve trial courts, routinely, in preliminary examinations, for most eyewitness identifications involve some element of suggestion.

What strikes me is that the Court writes of trial courts routinely conducting preliminary examinations would be a bad thing.  And then SCOTUS puts its head in the sand:

In urging a broadly applicable rule, Perry maintains that witness identifications are uniquely unreliable.

Um, but they are.  What’s your point?  And then the thump comes:

The fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen the evidence for creditworthiness. The Court’s unwillingness to adopt such a rule rests, in large part, on its recognition that the jury, not the judge, traditionally determines the reliability of evidence.

Alright.  Fine.  Be that way.  I know how it is with people like you.

Surprisingly, we can look to Justice Sotomayor for a ray of hope in the future.  From her dissent:

This Court has long recognized that eyewitness identifications’ unique confluence of features—their unreliability, susceptibility to suggestion, powerful impact on the jury,and resistance to the ordinary tests of the adversarial process—can undermine the fairness of a trial. Our cases thus establish a clear rule: The admission at trial of out-of-court eyewitness identifications derived from impermissibly suggestive circumstances that pose a very substantial likelihood of misidentification violates due process. The Court today announces that that rule does not even “com[e] into play” unless the suggestive circumstances are improperly “police-arranged.”

Good girl  Called them on it.  And then she nails the Court with their own words – and what we know to be true from our Eyewitness post:

Eyewitness evidence derived from suggestive circumstances, we have explained, is uniquely resistant to the ordinary tests of the adversary process. An eyewitness who has made an identification often becomes convinced of its accuracy. “Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent . . . courtroom identification.”

Reams of studies support her words.  And just to nail it shut:

The end result of suggestion, whether intentional or unintentional, is to fortify testimony bearing directly on guilt that juries find extremely convincing and are hesitant to discredit.

Whew, I’m liking this girl.  We need to move on, but her dissent is the basis for pushing hard for pretrial examinations of eyewitness testimony and, in particular, identifications.

Next up is Minneci v. Pollard.  The operative facts:

Respondent Pollard sought damages from employees at a privately run federal prison in California, claiming that they had deprived him of adequate medical care in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. The Federal District Court dismissed the complaint, ruling that the Eighth Amendment does not imply an action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, against a privately managed prison’s personnel. The Ninth Circuit reversed.

Here’s what we have:  A comparison of private- versus traditionally public-run prisons, and the implications for Bivens damages.  Bivens is the case that opened the door to creating personal liability for government agents when those agents violate our constitutional rights.  SCOTUS Blog wrote this when the Court agreed to hear this case:

At this stage, the Court does not explain why it will hear a case, but the ruling by the Ninth Circuit conflicts directly with decisions of two other Circuit Courts (the Fourth and the Eleventh), and involves the creation of a perhaps wide expansion of the Bivens decision.   The private organization, DRI, which seeks to curb civil liability in general, told the Court in a separate amicus brief that the Ninth Circuit ruling “takes Bivens into uncharted territory by exposing private employees to an unprecedented form of personal liability,” and potentially may extend Bivens-type liability well beyond the prison setting, given how common it is for private employees to work under contract for federal agencies.

And therein lies an accurate analysis.  Privately run prisons are doing a traditionally public function.  So what happens when this private institution does something that would result in liability if done by a public institution?

Nothing to see here, SCOTUS wrote:

Because in the circumstance of this case, state tort law authorizes adequate alternative damages actions—providing both significant deterrence and compensation—no Bivens remedy can be implied here.

The entire premise of Bivens was to fill a gap in justice.  Aggrieved people should have justice.  Because of sovereign immunity, we had no recourse against government agents until Bivens.  But then to use Bivens backwards – to create liability for the private sector because they are performing a public function – is just not necessary.  SCOTUS held correctly that traditional remedies grounded in state tort law are adequate.

The third SCOTUS case of interest is Smith v. Cain.  The drill:

The State of Louisiana charged petitioner Juan Smith with killing five people during an armed robbery. At Smith’s trial a single witness, Larry Boatner, linked Smith to the crime. Boatner testified that he was socializing at a friend’s house when Smith and two other gunmen entered the home, demanded money and drugs, and shortly thereafter began shooting, resulting in the death of five of Boatner’s friends. In court Boatner identified Smith as the first gunman to come through the door. He claimed that he had been face to face with Smith during the initial moments of the robbery. No other witnesses and no physical evidence implicated Smith in the crime.


Petitioner Juan Smith was convicted of first-degree murder based on the testimony of a single eyewitness. During state postconviction relief proceedings, Smith obtained police files containing statements by the eyewitness contradicting his testimony. Smith argued that the prosecution’s failure to disclose those statements violated Brady v. Maryland, 373 U. S. 83. Brady held that due process bars a State from withholding evidence that is favorable to the defense and material to the defendant’s guilt or punishment. See id., at 87. The state trial court rejected Smith’s Brady claim, and the Louisiana Court of Appeal and Louisiana Supreme Court denied review.

Oh, boy, eyewitness testimony again.  Naw, we’re talking Brady now.  Brady v. Maryland redefined pretrial discovery in criminal cases. Prosecutors, that can generally be a nice group of people peppered with a few malignant souls that should be flayed in the public square, would routinely withhold exculpatory evidence from defense counsel.  Read here for malignancy in action, namely DA Harry Connick.  If prosecutors have evidence that goes to the innocence of the defendant, it’s better be disclosed.

And Smith seems to be a clear case.  Here’s the Smith holding:

Brady requires that Smith’s conviction be reversed. The State does not dispute that the eyewitness’s statements were favorable to Smith and that those statements were not disclosed to Smith. Under Brady, evidence is material if there is a “reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Cone v. Bell, 556 U. S. 449–470. A “reasonable probability” means that the likelihood of a different result is great enough to “undermine[ ] confidence in the outcome of the trial.” Kyles v. Whitley, 514 U. S. 419. Evidence impeaching an eyewitness’s testimony may not be material if the State’s other evidence is strong enough to sustain confidence in the verdict. United States v. Agurs, 427 U. S. 97–113, and n. 21. Here, however, the eyewitness’s testimony was the only evidence linking Smith to the crime, and the eyewitness’s undisclosed statements contradicted his testimony. The eyewitness’s statements were plainly material, and the State’s failure to disclose those statements to the defense thus violated Brady. Pp. 2–4.

So if all of this was so clear, why did it have to get to SCOTUS to remedy?  Because it seems that when the Court writes “Here, however, the eyewitness’s testimony was the only evidence linking Smith to the crime” they are somewhat alone in that assessment.  Even Justice Thomas dissents because of the additional evidence he cites – and that was what the appellate court in Louisiana saw, too.  Next.

The last case of interest to us is Gonalez v. Thaler. Here’s what we’re dealing with:

Petitioner Rafael Gonzalez was convicted of murder in Texas state court. The intermediate state appellate court, the Texas Court of Appeals, affirmed Gonzalez’s conviction on July 12, 2006. Gonzalez then allowed his time for seeking discretionary review with the Texas Court of Criminal Appeals (Texas CCA)—the State’s highest court for criminal appeals—to expire on August 11, 2006.

Yeah, like chewing aspirin.  Can I take the cheap way out?  Thanks … from SCOTUS Blog:

Finally, in Gonzales v. Thaler, the Court found the petitioner’s appeal untimely,holding that Section 2253(c)(3) is a mandatory but nonjurisdictional rule; that the failure of a certificate of appealability to “indicate” a constitutional issue does not deprive a court of appeals of jurisdiction to adjudicate the appeal; and that, for a state prisoner who does not seek review in a state’s highest court, the judgment becomes “final” for purposes of Section 2244(d)(1)(A) upon “expiration of the time for seeking such review.”  Coverage and commentary comes from the Associated Press, Hillary Stemple at JURIST, and Kent Scheidegger of Crime and Consequences.

Very simple:  The criminal-justice system runs according to tight calendars.  If anything is happening as we review opinions, we’re seeing less tolerance for expanding reviews of cases – limited habeas, enforcing filing dates, etc.  Live and die by the calendar.  Don’t miss filing dates at any stage of a case.

All done …

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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