Changing times, changing minds

On Thursday, the US Supreme Court handed down its long-awaited decision in the Wayfair case. In its opinion, the Court held that the physical presence rule instituted under National Bellas Hess in 1967 and affirmed in Quill in 1992 was out of date and was no longer to be used to determine whether a company had sufficient minimum contacts with a state. The ruling will allow states to require online companies with no physical presence in the state to collect and remit sales tax revenue from customers.

But what, you ask, does that have to do with criminal law or anything else discussed on this blog? The answer is the substance of the case has absolutely nothing to do with anything covered in this space. What is interesting, however, is that a fairly long-standing precedent was overturned by a 5-4 vote with two justices voting to overturn the precedent they had previously voted to retain.

I think when we think of the US Supreme Court we envisage nine wise folk wearing black robes and issuing proclamations about the law with all weight of a papal bull. But that's not how it works.

In law school we have the concept of stare decisis pounded into our brains at every turn. The practice of law is really the practice of finding precedent to support your position and fitting the facts into a framework laid out by the court. The court's role is to make its ruling as narrow as possible so as to fit the new ruling into the patchwork of precedent.

What we generally see in a case is a slight shift in the application of the law justified by some little fact that makes this particular case different than the cases that came before it. That way precedent is honored and narrow exceptions are made.

But in Wayfair two judges changed their minds. It wasn't that the fact patterns were different. Unlike many opinions in which the court makes an exception to existing precedent, the opinion didn't get into the game of distinguishing fact patterns and why this one particular fact, or facts, made the difference. Instead the opinion spoke of changed times and changed minds.

Thus the edicts passed down from the Supreme Court aren't infallible and they aren't written in stone. They are subject to change. The minds of the justices are subject to change. And what the law is and isn't might hinge on the shifting sands of one justice's mind.

And if you don't like the rulings a particular justice makes, rest assured, one day he or she will not be sitting up behind the desk wearing a black robe. Someone else, someone with a different opinion, may be sitting up there in his or her stead. The makeup of the court will change as will its reputation.

Maybe there is still some hope out there for the Fourth Amendment.

Narrowly missing the point

nar·row

ˈnerō/

adjective

1. 1.

   (especially of something that is considerably longer or higher than it is wide) of small width.

   "he made his way down the narrow road"

   synonyms:

   small, tapered, tapering, narrowing; More
2. 2.

   limited in extent, amount, or scope; restricted.

   "his ability to get good results within narrow constraints of money and manpower"

   synonyms:

   limited, restricted, circumscribed, small, inadequate, insufficient, deficient "a narrow range of products"

Who knew that the word narrowly was so difficult to understand?

On Monday the US Supreme Court issued its ruling in the Masterpiece case -- otherwise known as the dude who refused to make a wedding cake for a gay couple case. In a 7-2 decision, the Court decided to punt the case down the road rather than deciding the case on its merits.

The media reported that the case was "narrowly" decided. Of course those who supported Jack Phillips' decision not to bake a cake for the gay wedding questioned how a 7-2 decision could be considered narrow. I would suspect that John Cornyn and Ted Cruz knew what "narrowly" deciding a case meant while they were sending out tweets in support of the decision claiming a victory for religion.

And, as an aside, if there was any doubt among y'all that the Republican Party stands for bigotry, hatred and discrimination, look no further than the officeholders who tweeted out about the decision and the words they used.

Anyone who paid attention in government class knows that the Supreme Court will always look to craft their opinion in a case as narrowly as possible since it is up to Congress to pass bills and the President to sign them into law. The purpose of judicial review (at least according to John Marshall) is to determine whether the application of a law is constitutional. The only time the Court strikes down a law itself as being unconstitutional is if there is no application of the law that can pass scrutiny.

This is the reason why lawyers will spend hours researching case law to find ways to distinguish the fact pattern in their case from existing precedent. If you can distinguish your case enough from those already decided by the court, you might just get the result you're looking for. And, in the same vein, it's why the lawyers on the other side will look for ways to pigeonhole the fact pattern in the case to an existing decision. As Tony D'Amato told his football team in Any Given Sunday, it's a game of inches.

In Masterpiece, the Court did not strike down the Colorado law Mr. Phillips was challenging. That would have been a broad decision - regardless of which way the Court leaned. In order to avoid having to make that decision, the Court looked at the application of the law in question and decided that the manner in which the hearing was held violated Mr. Phillips' right to freedom of religion (or, as I prefer, his right to use religion as a justification for discriminating against a group of people).

The Court wasn't happy that the commission who decided that Mr. Phillips violated the law seemed to be a bit hostile to his religious beliefs. Now, call me crazy, but if you're going to use religion as your defense to a claim that you discriminated against a couple because they were gay, then I think your religious beliefs are fair game in a hearing.

The funniest part of the right's celebrating the Court's ruling is that what the Court really did was instruct Colorado on the proper way to enforce their anti-discrimination statute. Let's think about this for a minute. The Court didn't declare the statute unconstitutional. The Court didn't say that forcing the baker to bake a cake for the gay couple infringed upon his religious beliefs. What the Court said was that the commission needed to conduct the hearing in a religion-neutral tone.

In other words, the next time the commission has to conduct such a hearing, the commission should let the baker give his reason for refusing to bake the cake. Then, instead of launching off into a speech as to how religion has long been used to justify racism, hatred, discrimination and violence, the commission should just ask him whether or not there was any other reason for him to refuse to bake the cake other than his belief that homosexuality was a sin.

If he were to say no, the commission could then vote and issue a ruling that he violated the statute in refusing to bake the cake. Based on Monday's decision, that would be upheld.

Of course the most amusing part of the opinion was Justice Gorsuch losing the plot and trying to explain what was a wedding cake and what wasn't and why it mattered.

The Gun Show

WNYC began producing a podcast entitled More Perfect in 2016. It is an exploration into the Supreme Court.

Last October they did an episode called "The Gun Show" about the history of 2nd amendment jurisprudence. I recommend it highly.

You will find that our modern day interpretation of the 2nd amendment is a fairly recent phenomenon.

Afterwards, ask yourself why the 2nd amendment is treated as sacrosanct while the 4th amendment is treated as an inconvenience.

Let them eat cake

Yesterday the U.S. Supreme Court heard oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the case about the baker who refused, on religious grounds, to bake a wedding cake for a same sex couple.

Amy Howe over at SCOTUSblog did an excellent analysis of yesterday's questioning from the Supremes. She believes the court will split (again) 5-4 in favor of the baker but wonders just how narrowly they will craft the opinion. She based her analysis on the change in tone of Justice Kennedy's questions from start to finish.

First, I must point out, once again, that religious belief is still the most popular justification for discrimination. Now I could go on and on quoting portions of the Bible in which Jesus preaches a message of equality and love and brotherhood. But I'm not.

Jack Phillips likes to call himself a christian. But he believes that the holy word gives him the right to discriminate against those whom he doesn't like. The latter day charlatans who preach that homosexuality is a sin worse than any other act like they are quoting the word of god when they launch into their hateful spiel. The only problem is the book they are quoting from has been translated countless times from multiple languages. There's no guarantee that the words they are quoting in 2017 are the same words written in the original texts.

But we digress.

The issue is whether a privately run business has the right to decide whom they wish to provide with services. This is different from the argument in the 1960's that private buses, trains, hotels and restaurants were public carriers. Mr. Phillips claims that forcing him to make a cake for a same sex wedding would somehow violate his right to free speech. I'm not really buying that one because food is not speech. Food is food and food is for eating.

Does requiring him to bake the cake violate his right to freedom of religion? As far as I can tell, no one is telling him what to believe or how to do it. However, would requiring him to bake the cake trample upon his right to the free exercise of his religion? That is a much closer question, I think.

What does it mean to exercise one's religion? Baking and selling cakes is a commercial enterprise, not a religious one. Maybe he says he's spreading the word of god by baking cakes - but is that exercising one's religion?

And what if in exercising that religion a person, or entity, intentionally discriminates against another based upon that person's race, sex, ethnicity, national origin or sexual orientation?

And, as an aside, at what point do we finally acknowledge that religion serves more to divide us than to unite us? White protestant churches were very prominent in the fight to preserve Jim Crow segregation in the South. All of the major protestant denominations split in the 19th century over the question of slavery.

Back in college I took a class on sociology and religion and our professor played for us a recording of an Emo Philips routine that I have looked for off and on for years -- and finally found it.



There are some serious issues that need to be addressed in this case. The Court must decide how much discrimination in private commercial enterprises is acceptable. If the Court decides it is acceptable then the Court must decide whether the enterprise wishing to discriminate must give a reason for its choice. If so, the Court must decide where to draw the line for a legally valid rationale for discrimination. Finally, the Court must decide which groups can be discriminated against for which reasons. It remains to be seen whether the Court will develop a balancing test to determine how large a community has to be in order to permit discrimination.

Regardless of the decision, the law of the land will most likely be determined by the vote of one justice - Anthony Kennedy. Not quite what the Founding Fathers had in mind, I daresay.

What's in a number?

Just to let y'all know, there is no constitutional crisis because there are only eight justices sitting on the US Supreme Court.

There is nothing magical about the number 9.

Here is Article III, Section 1 of the US Constitution:

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

See? There is nothing in the Constitution that says there have to be a certain number of justices on the Supreme Court. And, in fact, there is nothing in the Constitution about the qualifications of the justices, either.

There were only six justices when the Court first sat (and only four of them sat). Over the years Congress increased the number of justices when new federal circuit courts were created. The number peaked at ten in the 1850's. That number was winnowed down to seven when Congress passed a law stating that the next three seats to open through death or retirement would not be filled. The number was then increased back to nine when two new circuits were created.

Franklin Roosevelt caused a stir when he proposed appointing a new justice for each sitting judge who was over the age of 70. That proposal never got off the ground as both Democrats and Republicans in Congress opposed it.

Whether or not the Republican-controlled Senate should hold hearings on President Obama's nominee to fill the seat held by the late Antonio Scalia, is merely a political question, not a constitutional crisis. There is nothing to prevent the remaining eight justices from hearing cases and issuing rulings. A tie just means that the lower court ruling stands.

Two sides of the same coin

For the past couple of weeks about all we've heard from the presidential campaign are attacks on the personality and temperment of the candidates. There have been few mentions of actual policy differences (with the notable exception of immigration). Why is that?

I would posit that it's because there isn't a dime's worth of difference between Hillary Clinton and Donald Trump. While they speak in generalities about economic, foreign and social policy, neither of them is going to challenge the basic tenets upon which American capitalism rests. Neither one of them is willing (or able) to acknowledge that we must rethink what passes for an energy policy. Drilling more holes in the ground will only make matters worse when it comes to the climate and our sustainability on this planet.

Neither candidate is going to change our petroleum driven foreign policy. Neither one is going to abandon autocrats and and dictators who either do our bidding or from whom we are dependent upon for resources (be they oil fields, minerals or landing rights).

Both candidates are beholden to the corporate ruling class - Clinton because she is dependent upon their campaign dollars and Trump because he is one of them.

Both candidates will sit and watch as our protections under the Fourth, Fifth and Sixth Amendments are watered down even further in the name of keeping the streets safe.

Oh, wait, you say. Now you're talking about the Supreme Court - there's where a difference exists between the candidates. Clinton will appoint judges who are left of center and Trump will appoint judges who are on the right. Those choices will affect jurisprudence for a long time to come.

Or will they?

The change in the composition of the court has done nothing to stop the constant erosion of the Fourth Amendment. The fact remains that bad facts make bad law. Most of the decisions that helped to eviscerate the Fourth Amendment were on cases in which the defendant had either done something really bad or had a lot of bad stuff in his possession. Lower courts (in which judges face the voters) will bend over backwards not to throw out the conviction. And, by the time the matter gets before the Supreme Court, the justices can find almost any justification for further restricting our rights.

And then there is the nagging little fact that what is constitutional or not is determined by the votes of nine men and women who attended Ivy League law schools and have little (or no) experience working in the trenches. What is a constitutional protection today could be gone tomorrow and put back in place a year from now. Let us also not forget that no one party is going to control 2/3 of the Senate. That means anyone who is nominated is going to go through a grueling process (and, by the way, the same holds true for other federal judicial appointments).

Let's not give in to the fear-mongering from both sides. The republic will not collapse upon the election of either Clinton or Trump. The Constitution will remain a document upon which a group of fallible men and women decide what the government can and cannot do.

Don't settle for the candidates being sold to us by the ideologically and morally bankrupt major parties. Go out on election day and vote your conscience. A vote cast for one candidate in order to prevent the other one from winning is a tacit surrender to a corrupt corporate system.

Don't wave the white flag in November.

What I've been listening to

I discovered a new podcast a couple of weeks ago that takes a very interesting look at the U.S. Supreme Court. It's called More Perfect and it's a spin-off from Radio Lab. The podcast is available on the NPR ONE app.

So far I've listened to an episode about attempts to abolish the death penalty, Earl Warren's favorite case, the Indian Children's Welfare Act and how plaintiffs get picked for test cases.

I recommend giving it a listen or two.

A common sense decision

Terrence Williams was convicted of murder for killing Amos Norwood in 1984. Mr. Williams said he did it because Mr. Norwood had abused him when he was a child. Nonetheless, the District Attorney, Ronald D. Castille, made the decision to seek the death penalty.

In 2012 a Pennsylvania Post-Conviction Relief Act (PCRA) court stayed the execution and ordered a new sentencing hearing as a result of Brady violations on the part of the prosecutor.

In 2014, the Pennsylvania State Supreme Court reinstated Mr. Williams' death sentence.

Nothing new there. Except that the chief justice was Mr. Ronald D. Castille. The same Ronald D. Castille who signed off on the death sentence almost 30 years before.

Yesterday, in Williams v. Pennsylvania, No. 15-5040 (2016),U.S. Supreme Court Justice Anthony Kennedy was the swing vote in a 5-3 majority that decided a judge must recuse himself from ruling on a capital case in which he had a "significant personal involvement" as a prosecutor.

Makes perfect sense to me.

But the question is why did this have to go to the highest court in the land to make such a basic finding? Mr. Castille, of course, thinks the ruling is ridiculous. But it's Mr. Castille's logic (or lack thereof) that I find ridiculous.

Mr. Castille was an elected district attorney. He made the decision to seek the death penalty against Mr. Williams. He made that decision for any number of reasons. And he thought everything was kosher when the question of whether or not to reinstate the death penalty in the case came before him in his role as Chief Justice of the Pennsylvania State Supreme Court. At what point did this train run off the rails?

Mr. Castille's concern is that a good number of judges come out of the prosecutor's office and that their fingerprints are all over too many cases to keep track of. He's worried that judges will have to recuse themselves by the bucketload as a result of this opinion.

Maybe he's right.

And maybe that's not such a bad thing were it to happen.

Whether Mr. Castille wishes to admit it or not, his vote in the case in 2014 was nothing more than an affirmation of a decision he made in 1984 that someone deserved to die. He wasn't going to second-guess himself. There was no chance he would have voted against reinstating the death penalty because that would be an admission that he was wrong in the first place. I doubt seriously that any of his colleagues on the bench were going to call him out on it, either.

The conflict of interest is clear and Mr. Castille should have recused himself without being asked because of his involvement in the case at the trial court level. His failure to do so, and his insistence that he did nothing wrong or suspect, speaks volumes about his judgment, or lack thereof.

Killing the frog one degree at a time

The other day I was leaving the Montgomery County Courthouse up in Conroe after court and noticed a state trooper behind me. As I turned onto the main drag the trooper flipped on his lights. I pulled over into a restaurant parking lot wondering why he pulled me over.

Soon I had my answer.

It turns out that the main bulb in the right taillight had burned out. I asked him if the center light was working. He said it was. He took my license and insurance and I dug through the pocket on the driver's side door for a spare bulb.

While I changed the bulb he printed out a warning and went on about his way.

I did appreciate him telling me my taillight was out - since equipment violations are an oft-used excuse to stop suspected drunk drivers. However, I was also a bit irritated since there was no equipment violation in my case. In Texas you are required to have two working taillights. Since all cars come equipped with three (one on each side and one in the middle), one can be malfunctioning and you aren't breaking the law. In other words, he had no legitimate reason to pull me over.

As I drove away my mind kept wandering back to the recent US Supreme Court case in which the Supremes upended precedent and decided that a traffic stop based on the officer's mistake of law is valid. In Heine v. North Carolina, No. 13-604 (2014), Mr. Heien was driving down the street when a law enforcement officer, Sgt. Matt Darisse of the Surrey County Sheriff's Office, stopped his car because he had a broken brake light. Of course Mr. Heien gave his consent when Sgt. Darisse asked to search the car.

Sgt. Darisse thought that Mr. Heien (who was laying down in the backseat) and Maynor Vasquez (the driver) were acting a bit suspicious so he asked to search the car after handing Mr. Vasquez a warning for the brake light. Well you don't have to be a genius to know what happened next. The search turned up a bag of cocaine. Both men were arrested.

At trial, Mr. Heien argued that the drugs should be suppressed because there was no legal basis for the traffic stop. It is (or, at least, was) well-established that a stop based on an officer's mistake of law was not reasonable, and was, therefore, illegal. Surprisingly enough the trial court didn't see it that way because, by golly, there was cocaine in the car and we must keep that shit off the streets.

On appeal the conviction was reversed because it wasn't illegal to drive a car in North Carolina with only one functioning brake light. The State Supreme Court then reversed the appellate court on the grounds that even though Sgt. Darisse was ignorant of the law, the stop was reasonable.

In an 8-1 decision, based more on looking at the outcome rather than on the process, the US Supreme Court held that a stop (or detention) based on an officer's mistake of law was, nonetheless, reasonable. So, even though we've been told for years that ignorance of the law is no defense against a criminal charge, it is, apparently, an excuse to detain someone illegally.

This decision has turned the Fourth Amendment on its side and is yet another example of how our rights are slowly being taken away from us without anyone noticing. We are the frog in the pot of water that doesn't even realize the temperature is being turned up until it's too late.

SCOTUS has one more for the road

Lorenzo and Jose Navarette were minding their own business driving a truck down the highway with 30 pounds of marijuana in the bed of the truck. At some point an anonymous driver called 911 and reported that the Navarette's truck had almost run her off the road. The 911  message was relayed to sheriff's deputies in Humboldt County who stopped the truck - after following it for some five minutes without observing any suspicious driving behavior.

The officers, naturally suspecting that Mr. Navarette was driving while intoxicated in the middle of the afternoon detained the brothers so they could conduct a DWI investigation. During the course of the investigation they came across the stash of weed in the back of the truck. The stop quickly changed course from a DWI investigation into a felony dope investigation.

At trial the court denied the Navarette's motion to suppress the marijuana and the brothers pled guilty and received 90 days in jail plus three years probation.

Now let's make certain we have a couple of the pertinent facts straight. First, the motorist who called 911 never left her name. Second, the anonymous driver never said she thought Mr. Navarette was intoxicated - only that he almost ran his or her car off the road.

On appeal the appellate court determined that there was sufficient corroboration in the fact that the police located the truck near the area the anonymous caller told them it was and that the anonymous caller got the license plate number correct. The appellate court then made the leap of logic that the driving behavior described by the unidentified 911 caller rose to the level of reasonable suspicion.

Of course we know what really drove the appellate court's decision-making process: the defendants had dark skin, funny names and a whole lot of weed in the truck. It was yet another example of courts making rulings based on the outcome and not the process.

Yesterday the US Supreme Court handed down its opinion in Navarette v. California, 572 US _____ (2014). And, not surprisingly, held that the stop met constitutional muster because the information provided by a caller who remains nameless was somehow corroborated when the officer saw the truck on the highway and because the driving behavior just screamed out that Mr. Navarette was intoxicated.

The Court went on to say that the fact that the call was made so near the time of the alleged driving behavior (according to the unnamed motorist) indicated that our Friend With No Name hadn't had sufficient time to make up the story. It just had to be true.

The decision is yet another broadside blow to what remains of the Fourth Amendment. It is also part of a line of cases that make a mockery out of a defendant's right to confront the witnesses against him. When was Mr. Navarette permitted to cross-examine the nameless caller? When was he allowed to probe for reasons the driver might make up, or exaggerate, an incident on the road? The officer certainly couldn't testify as to what driving behavior he witnessed that made it apparent that Mr. Navarette was intoxicated.

Justice Antonin Scalia summed it up best in his vigorous dissent:

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunken­ness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point hisword is as good as his victim’s. 

At least it's not a needle

Police arrest suspect. Police take suspect to jail. Police take suspect's fingerprints when he is booked in for identification purposes. Police collect other scientific evidence for use in solving cold cases.

What's wrong with this picture?

According to Supreme Court Justice Anthony Kennedy and four of his fellow justices, not a damn thing. You see, there's nothing overly intrusive about it. Just take a giant Q-tip and roll it around inside someone's mouth and you have instant DNA sample. No one is getting strapped down. Nothing is being injected in someone's body. And, best of all, now you have a DNA sample you can enter into a database to see if your new guest is implicated in any other crimes that have gone unsolved.

It is so strange, at times, to agree with Antonin Scalia. But, when it comes to Fourth Amendment issues, his goofy textualist philosophy generally works in favor of the accused. Justice Scalia wasn't concerned with the intrusiveness of the collecting of the sample. He didn't care if it was convenient. Justice Scalia had a problem with the fact that the sample would be used as evidence in investigating other crimes.

Oh, did I forget to mention the samples in question were taken without a warrant?

Yesterday the Nine in Robes decided by a vote of 5 to 4 in Maryland v. King, 569 US ___ (2013), that there was no need for the government to obtain a warrant to collect a DNA sample from someone arrested for a crime. Not convicted, mind you, just arrested.

The decision raises questions on various levels. First, since when do we equate a DNA sample to a booking fingerprint? The purpose of fingerprinting those arrested and jailed is for identification purposes. Down the road, should that person be convicted and find themselves on the wrong side of the iron bars again, that fingerprint card from the first arrest and conviction can be compared to the new card to identify those folks who have prior convictions are who are subject to enhanced sentences.

The fingerprints are also loaded into statewide and nationwide data bases that allow law enforcement agencies to compare fingerprints found at the scene of a crime to those taken of folks charged or convicted of various crimes.

The DNA evidence in this case would constitute scientific evidence that could be used against the arrestee in any other case in which there is a hit on his sample. The sample isn't being used for identification purposes, it's being used for investigative purposes. It is being obtained without the slightest showing of probable cause.

This decision, and all the other 5 to 4 decisions in matters concerning our rights under the Bill of Rights, raises questions about the reverence judges pay to the principle of stare decisis. If we are going to use these cases decided by one vote as precedent on which to base our rights, shouldn't we be concerned that in this vast democracy, a right was defined by one person who was not elected and is not accountable to the citizenry?

Furthermore, if a case is decided by but one vote, what does that tell us about the strength of the precedential power of that case? Knowing that the same facts could just have easily led to a different decision if the composition of the court was changed by one justice, should we rely upon those decisions to the same extent we rely on unanimous (or near-unanimous) decisions?

There is nothing magical about the nine who sit in Washington. They are men and women who have decided, based on nothing more than their own political beliefs, that they each know the correct method of interpreting a document written in the late 19th century - a document whose authors could never have imagined how much things would change over the course of 200 years.

Who's to say that Justice Scalia's textualism is any better than the idea that the Constitution and Bill of Rights are living documents that must change with the times? And where does the doctrine of original intent fit in? Does it really make sense to try to analogize the items of our modern society to the items at hand in 1800?

Removing all doubt

Abraham Lincoln supposedly said it was better to remain silent and be thought a fool than to open your mouth and remove all doubt.

After seven years Supreme Court Justice Clarence Thomas has chosen the latter. Justice Thomas made his first comment during oral argument on Monday since February of 2006. But instead of asking a question of the litigants, he remarked about a joke that one of the lawyers told.

I'm sure the person at the heart of the case, Jonathan Boyer, wouldn't have been quite as amused. Mr. Boyer is on in the state penitentiary in Louisiana after being convicted of murder. Mr. Boyer was held in custody for seven years before going to trial. He is arguing that his right to a speedy trial was violated and that the conviction should be overturned. He is also arguing that the lawyers appointed to represent him at trial weren't qualified to try a murder case.

But Justice Thomas wasn't too concerned about the plight of Mr. Boyer. He was more interested in a joke about a lawyer who went to Yale and a lawyer who went to Harvard.

And that's what happens when you are totally divorced from reality. Clarence Thomas should never have been put on the Supreme Court. He wasn't qualified at the time he was appointed and he isn't qualified today. The other justices read the briefs drafted by their clerks and ask questions to clarify what relief is being sought, on what grounds and basis for the claim. They will interrupt a litigant to ask him to clarify a point or to find out why he or she thinks the case at hand is different from a case previously decided.

In the last seven years Clarence Thomas has heard lawyers arguing about the death penalty, the Fourth Amendment, the Fifth Amendment, the Sixth Amendment, the federal sentencing guidelines and the disparity between sentences for possession of crack and power cocaine. And for those seven years he sat there mute.

And, instead of asking a profound question or making an incisive remark, Justice Thomas opened up his mouth to comment on a joke.

The joke, I'm afraid, is on us.

Supreme Court upholds insurance industry bailout

Okay, people, it would appear that the world survived yesterday's Supreme Court decision on the Affordable Care Act. Of course you couldn't tell from the reaction of conservative commentators who seemed united in their message that this decision marked the end of Western civilization as we know it (not that would be a terrible thing).

The reality is that the Supreme Court did what the robed ones are supposed to do. They began with the premise that the law was constitutional. They looked for a provision that authorized Congress to require individuals to purchase health care coverage. They made their ruling as narrow as possible.

As to the merits of the individual mandate, the states have for years required motorists to purchase liability insurance on the cars they drive. The difference here is that it was the federal government requiring the citizenry to purchase an insurance product rather than the state.

But, having said that, the individual mandate amounts to the biggest chunk of corporate welfare in this nation's history. The real beneficiaries of the decision are the health insurance companies who will now get a new flock of customers to buy their over-priced products. Keep in mind that these insurance companies the government is trusting our health care to have failed miserably to keep costs down over the last 20 years.

What these companies have done is reduce benefits and services while at the same time increasing premiums and profits. This drive to squeeze out every possible penny in health care dollars will continue unabated as long as the government mandates that we purchase coverage from a private company.

The companies fought tooth-and-nail against the public option - realizing that should the keys to the health care system be handed over to the government, the days of milk and honey would be over. Instead, under the guise of providing coverage for the uninsured, the ACA will keep insurance company executives rolling in the dough.

Access to health care is a human right, but so long as the profit motive runs our health care system, the people will always be on the short end.

The half-full (or half-empty) glass

On Monday the Supreme Court, in Miller v. Alabama (combined with Jackson v. Hobbs) put the kibosh on mandatory life in prison without parole for juvenile offenders. According to the Nine in Robes, sentencing a juvenile to LWOP is a violation of the 8th Amendment's prohibition on cruel and unusual punishment.

The Court did not declare that sentencing a juvenile to life in prison without parole was a Constitutional violation. Courts are still free to tell a teenager that his or her life isn't worth anything. The states, however, cannot mandate LWOP for a juvenile.

It's the classic six of one, half a dozen of the other decision. The ruling does not mean that the more than 2500 men and women in prison who were sentenced to LWOP under mandatory sentencing laws get to go home. Nor does it mean their cases are remanded for sentencing. It just means that they will find themselves eligible for parole at some point in the future.

Let's face it, there are some kids out there who have done some pretty heinous things to get themselves locked up for life in the Big House. But I don't see how a rational person could think that a 14- or 15-year-old fully understands the consequences of his actions in the same way that a 25- or 26-year-old would. The brain of a 15-year-old is not fully developed - that doesn't happen until sometime in the mid-20's.

It's not right to condemn a teenager to death in prison for something he did while his brain was still forming. We wouldn't think of locking up an 8-year-old for life. Would anyone consider locking up a 12-year-old for life?

Just think back to when you were in high school. Now think of all the incredibly dumb things you did at that point in your life. While you may not have taken the life of another, I'm certain there are some things you did that you'd just as soon no one else ever find out about.

There's a reason we don't allow teens to drink alcohol. There's a reason we don't allow 16-year-olds to vote or join the military. There's a reason we don't let 13-year-olds drive cars.

The United States is one of the only nations on this earth that locks up juveniles in prison. We are certainly the only nation that would throw a 14-year-old in a prison and tell him he will die behind bars. Why? Why do we value the lives of our children so little? Why are we so willing to cut funding for education whenever the state encounters a budget shortfall?

We're the adults here. We're the ones making the decisions that affect the lives of our children. We're the ones who ought to be setting an example of how to steward in the next generation. We're the ones who are supposed to have the wisdom and judgment to make the decisions that affect us all. But when our politicians are willing to sacrifice the lives of teenagers in order to curry favor with right-wing voters, what does it say for the rest of us?

The Supreme Court didn't go nearly far enough in this opinion. There are no circumstances that should ever warrant telling a child he's worthless and will die in prison. The life of a teenager is still redeemable - even if his actions are unspeakable. And, as I've stated many times before when discussing the death penalty - locking up a kid forever is not going to undo what he did nor is it going to bring anyone back to life.

Undermining the rule of law

The United States Constitution makes very little mention of citizens. It mandates that our elected representatives be citizens and that the President and Vice President are citizens, but beyond stating that all "other persons" counted as 3/5 of a citizen.

The blueprint of our representative democracy states, in Article I, Section 9, that:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

One of the biggest fears of the Founding Fathers was the suspension of the Great Writ. There is no mention anywhere in the Constitution that only citizens of the United States are entitled to use a writ of habeas corpus to get into court. Anyone held in any county jail or state prison can file the writ to get his day in court (unless of course the government has decided they want to kill you and restrict your time to file the writ to one year).

The only time the Great Writ was suspended was during the Civil War when President Lincoln suspended it due to the rebellion.

But on Monday the US Supreme Court effectively suspended the writ for anyone held as a so-called enemy combatant in our government's War on the Constitution Terrorism. As Scott Greenfield reminds us, back in 2008, the men (and woman) in black ruled that the detainees in Guantanamo were entitled to the use of the writ to get their day in court.

Those who had been held without being charged lined up and filed. Trial courts granted the writs and ruled, in many cases, that the detainees were being held illegally. One of those detainees was an American citizen, Jose Padilla, who was held in a US Navy brig in Charleston, South Carolina.

While trial courts were issuing rulings upholding the rule of law, the DC Court of Appeals was doing its best to slice and dice the Constitution. Every case that the government appealed was reversed by the appellate court and the standards that a detainee would have to meet to gain his release were raised to a level no one could achieve.

And when the Supremes had their chance to let the appellate court know that it meant what it said, they punted. One could argue that no one's right to file the Great Writ has been suspended - only that the bar for relief has been raised higher for those whom the government says are the bad guys. But, when the raising of the bar effectively denies each and every detainee of their right to review, the right to file the Great Writ has been suspended.

And the Supreme Court is more than happy to sit back and allow the most conservative appellate court in the nation to thumb its nose at it. The Supremes could have but some teeth into their earlier decision, but why bother? It's not like anyone's marching in the streets demanding that the detainees get their right to review. It's not like anyone's going out on a limb arguing that our national principles demand that these men be released from illegal detention.

No one's going to take up the flag of their cause. And that's exactly what the rule of law is supposed to protect - the rights of the unpopular.

Correct me if I'm wrong

As I drove back in the rain from South Texas the other day I was listening to Talk of the Nation on NPR. If you haven't tuned in, it's a fairly formulaic news talk show with host Neal Conan lobbing a bunch of softballs at his guests and taking the occasional phone call. (Click here to listen to the program.)

On the day in question the topic of discussion was the Supreme Court and what a 5-4 decision on President Obama's health care legislation might mean. One guest, Jeffrey Rosen, wrote an article arguing that such a vote would indicate that Chief Justice Roberts has failed in his self-appointed mission to build consensus on the court. Another guest, Carrie Severino of the Judicial Crisis Network, a conservative analyst, thought it was absurd to view a narrow decision as a failure on the chief justice's part.

She kept talking about how it didn't matter whether there was a consensus or not so long as the court made the decision based on a correct interpretation of the law. And that's what I found funny about the show. How does one decide that a decision was made on a "correct" interpretation of the law? And who decides what is the "correct" interpretation?

One could argue that whatever decision the nine robes reach is the correct interpretation of the law because, after all, the Supreme Court is the final arbiter on what the law means. If the Supremes declare that some provision of a law is unconstitutional, then it is unconstitutional - at least until the Court decides otherwise.

The Fourth Amendment is pretty damn clear when it comes to whether a search is legal or not. There isn't much room for interpretation. Ah, but what is a search? Once the Supremes realized that if they followed the words of the Fourth Amendment that there wouldn't be a whole hell of a lot of evidence in criminal cases they began to chip away at its protections. So what's the "correct" interpretation?

And what role does precedent play in the analysis? At some point there will be enough exceptions to a previous rule that the rule is, for all intents and purposes, nonexistent. At what point do we just say to hell with the old rule and create a new one? Who decides if that's the correct interpretation?

I happen to think that 5-4 decisions are a good thing. When the interpretation of a law depends on the vote of one judge I think it highlights that the men and women sitting behind the bench aren't Olympian gods and that the decisions they reach aren't etched on stone tablets and carried down from a mountain.

The men and women who decide what our Constitution means are human and they are subject to the same biases and prejudices that we all are. The law is a very fluid concept and the fact that things could have turned out differently had one person changed their mind is something we should never forget.

Bend over, please

On Monday, in a 5-4 decision that was to be expected, the United States Supreme Court announced that it is subservient to jail guards in importance. So much for that separation of powers and checks and balances you learned about in government class.

As Scott Greenfield pointed out yesterday, Justice Anthony Kennedy informed the public that the Supreme Court is "in no position to second guess the judgments of corrections officers..." This is the same Court that has told school districts to admit all students regardless of race, the same Court that has told states they cannot kill an inmate if they can't follow their own protocols, the same Court that has told legislators that their latest law is unconstitutional. But, despite that, this Court feels the need to show deference to the guards at the county jail.

And, because the Supreme Court feels it cannot substitute its judgment for the judgment of a jail guard, anyone arrested for any offense, no matter how trivial, is now fair game for one of the most humiliating things a person can be subjected to - a strip search. Make no bones about it, getting arrested is one of the worst experiences a person can go through. Feeling the cuffs lock against the wrists, being forced into the back of a squad car, having to beg a friend or relative to post a bond.

The majority of arrests are for non-violent offenses. There's not much danger of a motorist arrested for driving while intoxicated shoving a weapon or dope up their butt in the few seconds before the officer comes to the window. The person arrested on an outstanding traffic warrant is not likely to be hiding any contraband in a body cavity. Yet, in the name of not missing the chance to humiliate anyone under arrest, the Supremes have declared that the jail guard can order those folks to strip, bend over and spread their cheeks.

It's bad enough watching the Supreme Court blindly accept a police officer's rationale for why he decided to infringe upon the bad guy's Fourth Amendment rights. It's obvious that the members of the Court are out of touch with what really goes on in the streets and parking lots of this country.

But what else should we expect from a government that says it's okay for the airport equivalent of mall cops to scope and grope people who want to board a plane? If it's okay for Joe Businessman then it's okay for the person who got pulled over after having a couple of drinks. It's all a downward spiral and we're just waiting to see who can make it to the bottom first.

Of course this decision certainly makes waiting on the Supremes' proclamation on the Affordable Health Care Act an interesting exercise. If the Court is going to defer to jail guards when it comes to strip searching everyone who's brought against their will into the county jail, how on earth will they justify striking down the individual mandate to purchase health insurance?

The jail guards aren't elected officials. Hell, some of them are fresh out of the academy. They haven't a clue as to what's constitutional or why. But, dammit, they know more about jail than the justices on the Supreme Court.

A cynic might say that the Supremes decided on the outcome of the case and then scrambled to figure out a rationale. And, it would appear that the only rationale the five in the majority could come up with was deferring to the experience of the jailers.

Nothing short of pathetic.

Hey, kids, get out of my yard!

Back in 2004, D.C. police decided that Antoine Jones was a bad dude and needed watching. Employing a spy store full of surveillance tools, the police obtained a court order allowing them to install a GPS device on the Jeep that Mr. Jones routinely drove (the car was registered to his wife). The court told the police they had ten days to install the device within the District.

On the 11th day, in a parking lot in Maryland, the police attached the GPS device to Mr. Jones' Jeep. Over the course of the next month the police obtained more than 2,000 pages of tracking data they used to put Mr. Jones with some really bad dudes who dealt cocaine.

Mr. Jones was subsequently indicted for his role in the conspiracy. His first trial ended in a hung jury. Los federales then obtained a second indictment. Mr. Jones wasn't so lucky at his second trial - he was convicted and sentenced to life in prison.

On appeal he argued that the installation of the GPS device constituted an unlawful search and seizure. The appellate court said "yes" and "no." The court held that installing a GPS device on a car was not the equivalent of a search - based upon the Katz test of whether the owner had a reasonable expectation in privacy as to his movements on a public roads. But the court did rule that the data obtained while the car was parked in the couple's garage or driveway did violated the Katz test.

In U.S. v. Jones, 565 US _____ (2012), the U.S. Supreme Court held that the attachment of the GPS device did constitute a search as law enforcement personnel, in effect, trespassed upon Mr. Jones' property in placing the device on the undercarriage of his car. Justice Scalia took a trip in his wayback machine and held that the Fourth Amendment was designed to protect the citizenry from trespass by the state. He wrote that Katz did not supplant the concept of physical trespass as the test to determine whether something was a search - but that  it was an addition to the analysis.

Of course that doesn't explain why it's okay for the police to look through your trash can while it sits on your driveway waiting to be taken away by the sanitation engineers. It also doesn't jibe with allowing the police to wander up to a garage and look in the windows - or to look in the open windows of a house. In making those determinations, the Supremes looked at Katz and then looked away from the Bill of Rights.

In her concurrence, Justice Sotomayor castigated Justice Scalia for taking a narrow approach to the Fourth Amendment. Justice Sotomayor would rather use the Katz analysis for determining whether a search took place. In her view, today's technologies have taken us beyond the question of whether the police trespassed on someone's property. She also raised the question of whether we waive our reasonable expectation of privacy when we disclose private information to a third party (just think about your smartphone's GPS or the information you type in to register for certain websites).

Justice Alito was also concerned that the concept of trespass was passe and that it led to inconsistent outcomes depending on the surveillance methods used by the police. He also pointed out Justice Scalia's opinion failed to address the installation of tracking devices by car manufacturers such as GM's OnStar or Lo-Jack.

Justice Alito also questioned whether a motorist had a reasonable expectation of privacy regarding the movement of his car in public. He didn't seem to have too much problem with what the government did in Mr. Jones' case, but he said at some point such monitoring would raise questions. For Justice Alito, attaching the device to the Jeep wasn't the problem, the problem was the amount of time the device was allowed to transmit.

What we have here is the so-called conservative bloc of the Court ruling against the use of warrantless GPS tracking by the police to be unconstitutional based on 18th century common law trespass while the so-called liberal bloc arguing that the installation of the unit was unconstitutional because it violated Mr. Jones' reasonable expectation of privacy due to the length of time the device was transmitting. Would we have had a different decision had the device only been installed for a week, ten days, two weeks?

From my point of view, the concept of trespass should be the starting point for any Fourth Amendment analysis - with the Katz analysis used to determine if an intrusion into one's privacy not contemplated by the Founding Fathers constitutes a search. Relying on one without the other makes little sense. Left unsaid is how the Court plans to reconcile the holding in Jones with prior decisions ignoring the tort of trespass upon property.

For more analysis, please see:

"Supreme Court strikes down GPS tracking device, raises more questions in the process," Liberty and Justice for Y'all (Jan. 23, 2012)

"Reactions to Jones v. U.S.: the government fared much better than everyone realizes," SCOTUSblog (Jan. 23, 2012)

Update: Perry's death party delayed

Last night the US Supreme Court put a halt to the State of Texas' attempt to murder Duane Buck. The issue is whether the punishment phase of Mr. Buck's trial was tainted by testimony from the state's expert witness, Dr. Walter Quijano, that a black man was more likely to be a future threat than a white man.

Then Texas Attorney General John Cornyn (now a US Senator) urged that Mr. Buck and five other inmates sentenced to death receive new punishment trials as a result of Dr. Quijano's testimony. The other five men received new punishment trials and were all sentenced to die (again). For some reason, Mr. Buck was not afforded the same treatment.

Thursday afternoon, Judge Denise Collins (the original trial judge) rejected a request by the prosecutor who tried the case, Ms. Linda Geffen, to take whatever action she could to halt the scheduled murder.

Rick Perry, who's never come across an execution he didn't like, has repeatedly rejected requests to halt the execution. The fair-haired one is more concerned with scoring votes from white Republicans who support the state-sponsored murder of anyone who isn't white.

Supremes to tackle confrontation again

The US Supreme Court is set to hear another case on what appears to be the biggest hot button topic in the courthouse - confrontation.

In Williams v. Illinois, 939 NE.2d 268 (Illinois 2010), Sandy Williams was charged with two counts of aggravated sexual assault, aggravated robbery and aggravated kidnapping. At trial the state chose not to call the lab analyst who ran DNA tests on swabs in a rape kit. The state did not seek to introduce the lab report into evidence but called another lab analyst as an expert witness. The state's expert then testified as to the method by which DNA samples are tested. She was then asked to give her opinion as to whether the DNA profile from the sample "matched" the DNA profile of Mr. Williams. She claimed she reviewed the lab report in coming to her opinion.

The defense objected to the analyst's testimony on the grounds that Mr. Williams' Sixth Amendment right to confront the witnesses against him was violated as he was not afforded the opportunity to cross examine the analyst who performed the actual tests upon which the lab results were based.

The judge ruled that this was not a Crawford matter and that the real issue was how much "weight" to give the evidence, not whether it should be excluded.

The Supreme Court will now decide if this scenario falls within the holding in Bullcoming. In that case Justice Sotomayor penned a concurrence that seemed to indicate she thought it was acceptable for the state to put on an expert witness (who did not conduct the test in question) to give their "independent" opinion of the results of the test.

While the rules of evidence allow experts to base their opinions on documents that would not be admissible in a court proceeding, that rule had more to do with the sources of the experts' knowledge than with giving an opinion based on someone else's (otherwise) inadmissible report.

Allow the state to get away with such a blatant end-run around Crawford would deprive defendants from questioning the analysts who conducted lab tests about the procedures used in the test. It would prevent defendants from questioning analysts about whether tests were conducted properly and in accordance with generally accepted standards.

Let's get real here. The state's "expert" did not give an "independent" opinion on the lab results. The "expert" was chosen because she would testify that the lab results indicated that Mr. Williams did what he was accused of. The "expert's" opinion was based upon a lab report that was inadmissible since the state didn't call the actual analyst to the stand. And, to top it off, claiming that the real issue is the weight to be given the expert's opinion, and not whether Mr. Williams' confrontation rights were violated, makes an absolute mockery of a person's right to confront his accusers. The assumption of the court is that the analysis was good science - whether or not the state met its burden to prove so.

Confrontation is not a right that can be "balanced" by some scale that weighs the rights of the accused against the level of inconvenience for the state.