Tuesday, November 22, 2011

Three Questions From Justice Kennedy

In each of three recent Supreme Court arguments, Justice Kennedy’s participation in argument distilled constitutional interests that support protection of individual rights. Whether the analyses reflected in the questions appear in the ultimate opinions remains to be seen. But Justice Kennedy’s thinking provides instruction for our approaches to the prosecution’s obligation to disclose exculpatory evidence, to the analysis of Sixth Amendment issues in the context of plea bargaining and sentencing, and to the future of privacy and technologically enhanced surveillance.

Smith v. Cain

In Smith, the New Orleans district attorney's office claimed there was no violation of the Brady obligation to produce exculpatory evidence. In a murder prosecution involving a single eyewitness, the prosecutor failed to provide the defense with several reports of pretrial statements in which the witness asserted he could not identify the shooters. As a consequence, the witness positively identified Mr. Smith at trial free from impeachment with his prior inconsistent statements. Before the Supreme Court, the New Orleans district attorney's office claimed that, although production would have been the better practice, there was no violation of Brady.

The Court heard this argument in the context of last Term's 5-4 reversal of a $14 million judgment against the New Orleans district attorney who, while withholding exculpatory evidence, sent an innocent man to death row (Connick v. Thompson). The Connick dissenters, led by Justice Ginsburg, had apparently not forgotten that the reversal was based on the district attorney’s claim that the Brady violation was an isolated incident, asking hard questions regarding the obviously exculpatory statements. But Justice Kennedy's observation separated the violation of the constitutional obligation and the availability of a remedy:

“[W]ith all respect, I think you misspoke when you -- when you were asked what is -- what is the test for when Brady material must be turned over. And you said whether or not there is a reasonable probability -- reasonable likelihood; pardon me -- a reasonable probability that the result would have been different. That's the test for when there has been a Brady violation. You don't determine your Brady obligation by the test of a Brady violation. You're transposing two very different things. And so that's incorrect.”

Smith Transcript at 48. One of the greatest frustrations in litigating Brady issues is the routine conflation of the pretrial obligation to produce exculpatory material with the post-trial consequences that flow from its concealment. Justice Kennedy demonstrated that the pretrial constitutional obligation to produce exculpatory material must not be diluted by the standard for deciding whether a violation of the constitutional obligation requires reversal.

Lafler v.Cooper

The second question from Justice Kennedy similarly focused on the distinction between a constitutional right and the remedy for a violation of that right. The Supreme Court considered two cases involving the application of the Sixth Amendment to attorney ineffectiveness during plea negotiations: in Missouri v. Frye, defense counsel failed to communicate an offer which, if accepted, would have reduced the exposure for a driving offense; in Laffler v. Cooper, the attorney incorrectly advised the defendant he could go to trial without risk on assault with intent to kill, which resulted in a much greater sentence (and no meaningful defense at trial). Both these cases looked fairly simple because, after Padilla, the guilty plea is clearly a critical stage of the prosecution at which the Sixth Amendment right to counsel applies. In both Frye and Laffler, the State admitted incompetence of counsel; on the prejudice question, the Supreme Court had previously held in Glover that even a day of additional incarceration from ineffective assistance of counsel during non-capital sentencing constitutes prejudice.

At the outset of the Lafler argument, Justice Kennedy appeared to be clearing the underbrush of what seemed obvious prejudice – exposure to greater prison time without correct advice – as opposed to remedies such as recision of the guilty plea and specific performance of the plea offer, asking:

“We can think about adjudication as having a constitutional violation, injury, and remedy. Are you saying that there was a violation in the abstract here but no injury, or was there a violation and an injury but just no remedy?”

Lafler Transcript at 5. The conversation in both cases never seemed to return to this simple analysis, which would appear to provide a basis for resolution of the difficult hypotheticals posed by various Justices. If the prisoner establishes that the plea offer would have been accepted, the prejudice element should be established under Hill with a “reasonable probability” of a different result. Given that Justice Kennedy wrote Glover, stating that “our jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance,” he will likely be focusing on remedy rather than prejudice. Justice Kagan also appeared to have had Glover on her mind when she repeatedly referenced the prejudice from a single day of additional incarceration due to ineffective assistance of counsel.

The remedy question should be decided based on the principles of equity. Justice Kennedy authored the landmark Guantánamo opinion in Boumediene, which included the quotation from Schlup that habeas “is, at its core, an equitable remedy.” Similarly, the federal habeas statute incorporates principles of equity in directing courts to dispose of cases as “law and justice require.” 28 U.S.C. § 2243.In plea bargaining, if there is Sixth Amendment incompetence and prejudice, the remedy should be relatively simple. As the Santobello decision recognized, specific performance is available where one prosecutor failed to perform on another prosecutor’s plea agreement. In the same way, the equitable remedy would require the parties to be returned to the status quo ante for performance of the agreement that was thwarted by defense counsel’s ineffectiveness.

Jones v. United States

In an epic Fourth Amendment case, the Court heard argument in Jones regarding the privacy rights implicated when police use global positioning devices to effect extended round-the-clock surveillance of a citizen's car. Early in the argument, Justice Kennedy framed factors that are likely to be outcome-determinative by asking:

“Well, under that rationale [that there is no privacy in anything exposed to public view], could you put a beeper surreptitiously on the man’s overcoat or sports coat?”

Jones Transcript at 5. The question reflects concerns that permeated the rest of the argument: the intrusion from the initial placement of the device; the lack of a clear line of demarcation between surveillance and intrusion into traditionally protected areas; and the Orwellian consequences of leaving unregulated by the Fourth Amendment practices that apply to Justices as well as suspected criminals.

For those following the evolution of privacy and technology (as blogged here), the full argument is well worth the read. Across the political spectrum, the Justices seemed to have misgivings about having our country take a decisive step toward 1984 on their watch. At the same time, the government used the Court's prior steps in that direction to say that 24/7 surveillance is no big deal: after all, the Court has found no constitutional objections to the police going through citizens' trash, recording the length and destination of telephone calls through pen registers, and trespassing on property not in the curtilage, then making observations from the open fields. The non-consensual planting of the global positioning device probably provides for a narrow decision in which the defendant prevails, but the Court is clearly looking ahead to the time when technology makes such a trespass unnecessary.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon


Anonymous Anonymous said...

With respect to Cooper and Frye, the "obvious prejudice" isn't so obvious, since Cooper got a fair trial. Additionally, Cooper is an AEDPA case.

Tuesday, November 29, 2011 3:47:00 PM  
Anonymous Anonymous said...

Steve -- with respect to your post on Lafler v. Cooper, you're interpretation of the Court's decision in Glover is simply incorrect. Glover involved an illegal sentence -- a sentence outside the legal range. The State essentially argued that the illegality was "no big deal" because it was only "a little" outside the range -- the defendant there got a sentence a couple of months above what the federal sentencing guidelines permitted for the crime of which he was convicted. The Court responded that even a day outside the legal range is 6th Amendment prejudice. You have to read Glover further. It goes on to say that a "harsher sentence" resulting from an attorney's error is not the focus. The focus is the illegality of the sentence. The Court earlier stated in Townsend v. Burke that a "harsher sentence" is not actionable so long as it is a legal sentence within the range set by the criminal statute. That's the situation here. Cooper's sentence was not illegal. It was within the legal range. The fact that it may be "harsher" than it otherwise would have been is not actionable, so long as it didn't go outside the legal range.

Wednesday, December 28, 2011 8:29:00 PM  
Blogger Steve Sady said...

Thank you for the comment. I disagree with your analysis because the focus in both Glover and Cooper is on Strickland prejudice. Justice Kennedy's reference to any additional incarceration constituting prejudice in Glover referred to additional levels under the Guidelines. In Cooper, the same type of prejudice resulted from incompetent attorney conduct during the plea negotiations. The distinction Justice Kennedy drew in Glover was for "trial strategies [that], in retrospect, might be criticized for leading to a harsher sentence." The first prong of Strickland, which the State conceded in Cooper, forecloses a finding that the harsher sentence results from a valid but unsuccessful trial strategy. That is why I think Justice Kennedy may have remedy on his mind and Justice Kagan's repeated reference to prejudice from a single extra day in prison may have been a reference to Glover.

Monday, January 09, 2012 2:49:00 PM  

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