Against My Better Hopes

I was talking with another lawyer about an appeal someone might be filing.  He thought it surprising that instead of rooting for a defense win, the criminal defense bar might actually be hoping that the prosecutor prevailed.  On the particular facts of the case, it would make better law.

No big deal, I said.  It's the sort of thing that happens more than you'd imagine.  I want to win the case for this client, but on the peculiar facts, the government's argument would do more good for the defense bar.

A variation involves getting a case into the Supreme Court - Ohio's, the U.S., or maybe the high court of your state.  Any court that gets to decide whether it will hear the case.  Consider:  

The supreme court hasn't ruled on an issue, but we've lost in an intermediate appellate court.  It's in the client's interest to get heard by the high court.  After all, whatever the odds, we might win and he'd get some relief (a new trial, a lesser sentence, sent home with an apology, whatever).  On the other hand, the court could take in the case and turn bad local law into bad statewide/nationwide law. 

Not a happy prospect.  But we do it anyway.  Because whatever we might wish to see happen, we don't represent the cause.  We represent the client.

And so, Richard Glossip, John Grant, and Benjamin Cole.  And the problem of counting to five.

Bring us a case, said Stephen Breyer joined by Ruth Bader Ginsburg.  Call the question.  It's time, once again, to ask whether the death penalty is unconstitutional for all these reasons.  

And he laid them out, those reasons he and RBG had, for 40 pages in a dissent from the decision to allow Oklahoma to kill Messers Glossip, Grant, and Cole using a mix of drugs including midazolam. If it were so inclined. 

It's clear that the two of them would vote, if they had a clear opportunity, to say that the death penalty is unconstitutional.  It's a fair assumption that the Generalissimo and the empathetic Latina would join them.  And then?

I spent a few days earlier this month with a couple of hundred death penalty lawyers.  Many of the top capital defense lawyers in the country were there.  And there was much talk about that fifth vote. 

It's Anthony Kennedy, of course, if it's anyone.  Lots of folks are ready to trust him.  As one smart, thoughtful, knowledgeable guy explained, neither Breyer nor especially Ginsburg is so naive as to call for a frontal assault on the death penalty without being damn sure that they'd win.

To which many of the others present, said

Maybe.  But maybe not.

And it's a hell of a risk to take.  

But the world is complicated.  And while the capital defense bar scrambles and tries to decide and works at putting together a strategy, the court in Oklahoma set dates for Richard Glossip, John Grant, and Benjamin Cole. On Friday, they filed a petition for rehearing.  They made this pitch.

The Court Should Grant Rehearing To Consider Whether The Death Penalty Is Unconstitutional Per Se. 

Which is what the lawyers had to do for their clients.  And what I imagine the State of Oklahoma will either oppose or ignore in the hope it goes away so they can get on with the killin'.  But what in their heart of hearts at least some in the prosecutorial, kill-'em-all community will wish the Court would take in.  To drive another nail into the abolitionist position.  Here's Bill Otis immediately after Glossip was decided.

1. Justice Kennedy joined Justice Alito's strong opinion for the Court and did not pen any kind of concurrence. For those who thought (or hoped) Justice Kennedy was on the verge of disbanding capital punishment, this is hugely important.
2. If either of President Obama's appointees were inclined to outlaw capital punishment per se, now was the time to go on record by signing on to at least some part of Justice Breyer's dissent (with Justice Ginsburg). Neither did. It would thus appear that there are seven solid votes against the abolitionist position, including the five youngest Justices.

I'm not sure Bill's right about the conclusions he draws from any of that.  In fact, I think he's wrong on 2. But on 1?  I don't want to find out.

And so, I - along with many other folks who oppose the death penalty and believe that it really is unconstitutional - find myself rooting against Glossip, Grant, and Cole.  Do I want them to be killed? 

No.  

Do I want the folks in Washington to take up their request - which may be their only hope?

No.

Damn.  This is fucked up.

Stephen Breyer's Buccal

Winning entry in Monday's Stupidest Remark by an Elected Official competition:

This is a resounding victory for both law enforcement and civil libertarians.

That's Maryland's Attorney General, Douglas F. Gansler, reaacting to the fact that Stephen Breyer continues to believe in the idea of the Constitution rather than the Constitution itself.  OK, OK, I'm maybe being unnecessarily obtuse.

The Supreme Court on Monday issued its opinion in Maryland v. King. The Fourth Amendment, Justice Kennedy said writing for a 5-4 majority, is perfectly happy to have cops take buccal swabs of everyone arrested for serious crimes, use them to generate DNA profiles, and then search to see if their DNA matches the DNA on file from unsolved crimes.  

That's fine, Kennedy said, because it's not particularly invasive to actually take a buccal swab, and it's important to check and see if the guy arrested today might have committed any other crimes because that's how we can be sure the guy we arrested today is the guy we arrested today which is both reasonable and necessary and golly gee, who would object.  And besides, if they'd taken a DNA sample when they arrested Tim McVeigh for not having a license plate on his car, they'd have figured out that he was the guy who'd just blown up the Murrah Federal Building and so been able to prevent it from having happened a little earlier instead of how they figured out that he was the guy who'd blown up the building when they arrested him but because they didn't get a DNA sample that would take up to a month to analyze they weren't able to stop him from doing what he'd done before they arrested him.

Really, that's what he said.

Of course, he dressed it all up in fancy legal gobbledygook and scattered citations to irrelevant Supreme Court decisions and the like.  But he had to do that because the alternative would have been to write something like this.

You never know when the guy you've arrested might have committed other crimes, and we have a chance of figuring it out if we take DNA samples from everyone we arrest.  (We'd do even better if we simply took DNA from everyone, but Maryland hasn't enacted that law yet.)  And since innocent people won't be fingered, they can't possibly mind having their DNA in a big national database, and if they do, well, who really cares what they think if we can maybe catch an extra bad guy or two.  And the Constitution's constraints on that sort of thing are messy, but we're talking about catching bad guys, so things like the Fourth Amendment just have to give way.  I mean, that whole thing about warrants and probable cause just interferes with law enforcement, so we can ignore it.

Which he couldn't really say.

Antonin Scalia, on the other hand, writing the dissent, pretty much said just that.  The Maryland law at issue specifically prohibits using the DNA samples for the purposes Kennedy claims can justify the law.  And as a practical matter, it's worthless for those purposes even if they were legal.  No, Maryland wants to take DNA samples from everyone arrested simply to solve crimes.

Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail.

Which is, I have to say, exactly right. 

What, you may rightly ask, has this to do with Stephen Breyer?  And where in the world did Attorney General Gansler get the idea that King was a win (a "resounding" one) for civil libertarians?

The short answer to the Breyer question is that he's responsible for the decision.  Oh, Kennedy wrote the opinion, and he's the standard swing vote.  He was joined, as you'd expect, by law and order types Roberts and Alito.  Clarence Thomas signed on, too, because the Fourth Amendment just like all those other parts that try to prevent government agents from doing what they want to individuals.  His Constitution was to defend the prerogatives of rich white guys and whatever they want to do to folks they think are maybe criminals (or, really, anything other than rich white guys) is just fine (as long as it doesn't advance the interest of those folks).  Really, you could imagine Kennedy voting either way on this one, but Alito? Roberts? Thomas? You knew where they'd come out.

You might imagine you'd find Scalia there, too.  But he switched sides on this one.  His dissenting opinion isn't particularly originalist.  He doesn't explain what the framers did, spends just a couple of sentences mentioning their attitudes.  Rather, he's pretty clearly offended at Maryland's (and Kennedy's) brazenly dishonest position.

The problem child here is Breyer.  He of the allegedly liberal bloc.  He who as a child had people "stick things in [his] underwear."  He who was attacked by a machete wielding desperado.  He signed onto Kennedy's opinion, which gave it a majority.  That's not what's supposed to happen.  Breyer's supposed to be this staunch liberal.  Which is, of course, hogwash.

Breyer, as I've said before, sees the job of the Court as helping government be efficient, especially if it can be done without it being too overbearing on individual rights.  Buccal swab?  No big deal.  Catch bad guys?  Big deal.  Rules for police to follow? Excellent.  Sign me up.  The Fourth Amendment? Feh. Not this afternoon.


Sure, the Fourth might prohibit this.  But the idea of the Constitution, the sort of government you'd like to have (he'd like to have)?  The idea trumps the reality which is clumsy and inefficient.  We're talking a fucking buccal swab.  And it won't be in his buccal.

Free Speech - Sort Of

I wasn't going to write about the Supreme Court's decision in Snyder v. Phelps.

I figured there was really nothing much for me to add.  I assumed that many of my brothers and sisters of the blawg would offer generalized praise for the decision, coupled with reminders that even the most evil speech (which Westboro's is) by the most repulsive folks is (which Westboro's are) is entitled to First Amendment protection.  (It doesn't deserve that protection; it gets it because, like clemency, it's about us not about them.)

And, of course, a number have.  (See, for instance, Turley, Mayer, and of course and especially Randazza.)  And then Scott Greenfield jumped in.

It's not that Scott disagrees with the general view.  Yes, the Court got it right, he says.  But we should be grateful to Alito for dissenting as a reminder that - feh.  Here's what Scott wrote.

And the lone dissenter, Sam Alito, knowing full well that his position would neither change the direction of First Amendment protections nor satisfy the need to fashion a means by which the most disgusting and offensive among us could be shut down without touching the right of anyone else, took the bullet for the Court.  

He said what needed to be said, that what Fred Phelps did to Albert Snyder was disgusting, a disgrace, a blight upon the Americans and humanity.  He said so knowing that his would be the lone voice, of no legal consequence but sufficient that Fred Phelps didn't walk away thinking that the magic space zombie jew really loved him.  Fred Phelps may have won, but let him always fear the sound of a Ford F-150 revving its engine behind him.

And for his, we owe Sam Alito.

It's true, sadly, that while the majority opinion by the Justice with the self-satisfied smirk that he probably mistakes for a smile (that's Roberts) lays out in detail and with appreciation the powerful First Amendment issues in the case, its legalistic approach does little to capture the depth of repulsion we all should feel (and hope that Roberts and the rest feel) at what Dahlia Lithwick called the "Phelps Family Roadshow of Bilious Bigotry."  And it's fine that someone picked up the slack to make the point.

But Alito's dissent is a problem.  Not because he turns what should have been an easy 9-zip decision into a still overwhelming majority 8-1.  But because it reminds us that Alito really does think there's an exception to the First Amendment for the odious.

This isn't the first time Alito has been alone in staking out an offensiveness exception to the First Amendment's protection of free speech.  He alone believed (see United States v. Stevens) that First Amendment protection could be denied to depictions of animal cruelty.  Here's how Elie Mystal put it.

Call it Free Speech 101. The hard part about the First Amendment is that you have to allow people to say all manner of annoying, vulgar, and inappropriate things, at the wrong times.

Not that Justice Samuel Alito thinks so. Justice Alito was the lone dissenter in this case. He was also the lone dissenter in the Stevens case, in which the Court overturned a ban on animal crush videos on First Amendment grounds.  But he voted with the majority in Citizens United.

(I left in that last line about Citizens United because it finished Mystal's paragraph and it's where he was taking his post.  It's really beside the point here.)

OK, maybe Alito is alone on an otherwise free-speech friendly court.  But today's lone dissenter can be tomorrow's majority voice.  (See Scalia, Antonin.)  And it's never good to have a guy on the Court who just doesn't get it.

Especially when he's not altogether alone.

Because while the decision was 8-1, the majority was not.  Or at least not entirely.

Stephen Breyer, whose view of most Constitutional rights is, shall we say quirky (we shall), joined the majority opinion but felt constrained to write a concurring opinion pointing out that the First Amendment really isn't all that sweeping.

Westboro’s means of communicating its views consisted of picketing in a place where picketing was lawful and in compliance with all police directions. The picketing could not be seen or heard from the funeral ceremony itself. And Snyder testified that he saw no more than the tops of the picketers’ signs as he drove to the funeral. To would punish Westboro for seeking to communicate its views on matters of public concern without proportionately advancing the State’s interest in protecting its citizens against severe emotional harm. Consequently, the First Amendment protects Westboro. As I read the Court’s opinion, it holds no more.

Forget all that broad language.  The Phelps family has First Amendment protection solely because this is a fact-bound opinion and the offensive folks walked a very fine line with great care.  Oh, and of course, it's only because they were picketing.  And on an acceptable subject.

The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings. The Court holds that the First Amendment protects the picketing that occurred here, primarily because the picketing addressed matters of “public concern.”

Breyer's trod this path before, most tellingly in an interview with George Stephanopolis where he explained (misquoting Holmes) that problematic speech (he was talking about planned Quran burning by another reverend lunatic) really isn't protected.  Here's part of what I wrote at the time adding a word I'd left out and quoting Stephanopolis.

“Holmes said it doesn’t mean you can shout 'fire' in a crowded theater,” Breyer told me. “Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?”

But, but, but (I'm sputtering here because that makes me so mad).

First, he's got Holmes wrong - and importantly wrong.  Here's the actual quote from Schenck v. United States.

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.

See the difference?

Holmes said that you can shout "fire" in a crowded theater.  In fact, if there is a fire, maybe you should.  But you can't (Holmes said), shout "fire" in that theater if it's not true and then cause "a panic."  There's no protection, that is, from causing great harm by a lie that you should have known would cause great harm.  

But that's not what Breyer seems to see.  He sees no protection for speech which might result in harm.  And boy is that ever something different.

And damned scary.

It was.  It is.  They are.  Both of them.  Breyer and Alito.

Nat Hentoff wrote a book called Free Speech for Me But Not for Thee.  He was, rightly, critical of that attitude.  There's a couple of guys in Washington ought to read it.

 

Disclosure:  I represented Shirley Phelps-Roper in a partially successful lawsuit challenging Ohio's funeral-protest law as amended precisely to keep the Phelps clan out of the state..