Subscribe via RSS Feed

Tag: "civil liberties"

The Fourth Amendment and the Surveillance State

[ 30 ] January 26, 2012 |

I have some follow-up thoughts to the GPS surveillance decision handed down by the Supreme Court earlier this week. The first major takeaway from the case is that Sonia Sotomayor was one of the best decisions Obama has made so far:

The split on the Court Monday, in essence, focused on which of these strands of Fourth Amendment jurisprudence to emphasize. The most interesting opinion in the case, however, is Justice Sonia Sotomayor’s concurrence. Although I’m a little puzzled as to why she joined Justice Antonin Scalia’s opinion—which seems to give less attention to her fundamental concerns—her own analysis is brilliant, forcefully arguing that the Court needs to rethink its Fourth Amendment jurisprudence in light of the Internet/wireless communication age. The “expectation of privacy” standard will not provide adequate protection if the increased potential power of the state is not taken into account. Sotomayor is correct, first of all, to argue, that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” And she is extremely persuasive in her argument about why the judiciary needs to check the use of GPS technology:

“Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may ‘alter the relationship between citizen and government in a way that is inimical to democratic society.’ […] I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. … I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent ‘a too permeating police surveillance.'”

Every point here is crucial, and her argument about the danger of information in the hands of third parties is particularly important.

Alas, Sotomayor spoke only for herself, so I have another piece about how to the extent that this is a victory, it’s a minor one. Normally, in a civil liberties case you’d take any vaguely acceptable opinion from Scalia and (especially) Alito and run, and neither of their conflicting opinions forecloses the development of a Fourth Amendment doctrine properly adapted to new technological powers. But the Court stopped short of even holding that this search violates the Constitution, and one can easily see either standard evolving in a way that gives the state extremely broad latitude. Thinking along the lines expressed in Sotomayor’s concurrence is desperately necessary.


GPS Tracking Constitutes a Search

[ 21 ] January 23, 2012 |

The Supreme Court has unanimously held that GPS tracking of an individual by the state constitutes a “search” in terms of the Fourth Amendment.    However, the Court declined to answer the crucial question of with the search was a “reasonable” one under the Fourth Amendment.  There was also a dispute between the Scalia majority opinion and Alito’s concurrence about the basis of holding that GPS tracking was a search.   If I understand correctly, oddly enough the Alito concurrence (joined by Breyer, Ginsburg, and Kagan) outlines a tougher standard, arguing that in some cases visual observation is sufficient to constitute a “search” given modern technology, while Scalia holds to the traditional position that mere visual observation cannot constitute a “search.”   I’m a little puzzled why Sotomayor — who advanced a similar position in a solo concurrence — didn’t just join Alito’s opinion instead, thus making it the opinion of the Court.   At any rate, the significance of the ruling is at this point unclear; whether it will have teeth will depend on whether or not the courts will just find that such searches are generally “reasonable.”   More on this tomorrow.

…as Glenn suggests in comments, it seems to me that the Sotomayor position is preferable to either; both Scalia and Alito want to carve out different exceptions to what constitutes a “search.”   But I’m still not convinced that given the two viable majority coalitions that the Alito position isn’t preferable.

The More Strained the Reasoning Leading to a Transparently Unjust Ruling, the Better!

[ 54 ] January 18, 2012 |

Shorter Scalia and Thomas: By stopping Cory Maples’s execution, the majority has violated Alabama’s rights. Look, sure, he didn’t really have a “lawyer” in the sense of someone responsible for his case and working on it, but someone with “no substantive involvement” in his case once showed up in court to represent him. So it’s his fault that he missed a deadline — let the execution go forward!

More on this later, when my jaw is restored to its socket.

Credulous Thomas

[ 24 ] January 12, 2012 |

Clarence Thomas’s 2011 opinion for a bare majority of the Court shielding the New Orleans DA from liability for its systematic violation of civil liberties (which in some cases led to innocent people serving substantial jail terms) stands out as one of the very worst from a Court that’s produced a lot of candidates for the title. Earlier this week, he issued a (fortunately solo) dissent that actually went the Thompson case one worse.

Earlier this week, the Court threw out a murder conviction by that very same DAs office based on its violation of the evidence disclosure required by Brady. This was an easy case, as reflected by the fact that even Roberts and Alito were unwilling to strain to find excuses for the prosecutors as well as the facts of the case:

Tuesday’s case concerned Juan Smith, who was convicted of killing five people in 1995, when a group of men burst into a house in search of money and drugs. They ordered the occupants to lie down and opened fire.

Mr. Smith was the only person tried for the killings. He was convicted based solely on the eyewitness testimony of a survivor, Larry Boatner. Prosecutors presented no DNA, fingerprints, weapons or other physical evidence.

But Mr. Boatner’s testimony proved sufficient.

“He’s right there,” Mr. Boatner said at Mr. Smith’s trial, pointing at the defendant. “I’ll never forget him.”

It later emerged that prosecutors had failed to disclose reports of interviews with Mr. Boatner. In one, hours after the killings, Mr. Boatner said he could not describe the intruders except to say they were black men. Five days later, he said he had not seen the intruders’ faces and could not identify them.

Eyewitness evidence, according to recent studies and court decisions, is both unusually persuasive and unusually unreliable. Kannon K. Shanmugam, a lawyer with William & Connolly who represented Mr. Smith in the Supreme Court, told the justices in a brief that the withheld statements from Mr. Boatner “constitute the epitome of impeachment evidence.”

When someone is convicted solely on the testimony of a single eyewitness, and the prosecution suppresses evidence that said eyewitness was unable to identify the accused in the immediate aftermath of the crime (but expressed certainty on the stand)…well, violations of Brady don’t get much more clear-cut, and the case is also an excellent illustration of why the Brady rule is necessary.

Despite this, Thomas filed a dissent that is quite a remarkable piece of work. The argument is that the suppression doesn’t violate Brady because it is immaterial: the majority, says Thomas, failed to a establish a “reasonable probability” that the suppression of evidence affected the jury verdict. But this is absurd. If the state had forensic evidence, or even more eyewitness testimony, that would be one thing. But when a conviction is based solely on one eyewitness, it should go without saying that evidence that might undermine the reliability of the eyewitness has to be disclosed to the accused. At least this time Thomas failed to carry his colleagues in his ongoing crusade to launder the systematic civil rights abuses of the Orleans Parish DA’s office.

Incidentally, the Court decided another major eyewitness testimony case this week — I’ll have a longer piece about that tomorrow.

Sometimes You (Sort of) Win One

[ 16 ] December 13, 2011 |

I blogged a couple weeks ago about the case of Juan Rivera, who Illinois prosecutors kept sending back to jail based although his confession was coerced and the forensic evidence pointed to another perpetrator.   I can’t say that justice has been served — too late for that — but the appellate court has had enough:

In its opinion, the appellate court on Friday said the confession was highly suspect and was not enough for a “rational trier of fact” to conclude that Mr. Rivera was guilty beyond a reasonable doubt. For instance, while prosecutors insisted that Mr. Rivera’s confession contained details only the killer would know, the court said that detectives had fed some details to him by asking leading questions and that some other facts had been made public in newspaper articles.

“The evidence belies the state’s argument and supports an inference that details of the crime were provided to defendant, intentionally or unintentionally, during the investigative process,” the opinion said. “The evidence further supports an inference that the details that the defendant provided were the result of psychological suggestion or linguistic manipulation.”

The court also noted that while the DNA evidence does not exonerate Mr. Rivera, it nonetheless “embedded reasonable doubt deep into the state’s theory.” The judges said evidence in the case discounted the idea that the sperm sample was contaminated. And regarding the state’s suggestion that the sperm came from an unnamed lover of Holly’s, the court said, “The state’s theories distort to an absurd degree the real and undisputed testimony that the sperm was deposited shortly before the victim died.”

In addition, the prosecutor who came up with ridiculous stories about people going for walks in the woods and coming back with their genitals covered in semen as a reason first to keep an innocent man in prison and then to decline to go after the guilty one is apparently getting pushed out. It’s good when investigative journalism gets results, and Martin’s was superb.

Perry Pardons Innocent Man!

[ 21 ] December 13, 2011 |

The bad news is that the pardoned man is dead.   Dead despite the fact that the guilty man tried repeatedly to confess:

Perry made those remarks during an extraordinary ceremony in which he handed down the first posthumous pardon in Texas history. Timothy Cole, imprisoned while a 26-year-old student at Texas Tech University, had been failed by the justice system at every turn. But what makes his story particularly gut-wrenching is that he perished in prison even as the real rapist, Jerry Johnson, tried repeatedly to confess to the crime. By the time Johnson’s story was heard, Cole had been dead nearly a decade.

The tale of Tim Cole and Jerry Johnson, which I investigated for more than a year, reveals a system in which an innocent man, once convicted, has virtually no chance of redemption—even with the guilty man fighting for it. For the thousands of Americans spending years of their lives in prison for crimes they did not commit, the odds couldn’t be much bleaker.

Definitely read the whole thing.

Perhaps in a decade or two a Texas governor will pardon Cameron Todd Willingham…


Keep Chuckin’ Those Facts

[ 20 ] December 12, 2011 |

Clearly, anyone who is more concerned with arbitrary executive authority than Ben Wittes must be lying.

The Confrontation Clause and the Obama Appointees

[ 20 ] December 7, 2011 |

I have a piece up at the Prospect about the 6th Amendment case that was argued yesterday. Since Scalia and Thomas have taken pretty consistent civil libertarian positions on the Confrontation Clause, the swing votes in the case are actually Kagan and Sotomayor. I have some concerns based on Sotomayor’s 6th Amendment opinion from earlier this year:

One might think that the two precedents make Williams v. Illinois a slam-dunk, but there a couple of reasons to think that the Court might change course. As Tom Goldtsein at SCOTUS blog observes, Sotomayor’s concurrence in Bullcoming specifically argued that the issue presented in Williams was not before the Court, suggesting that she’s open to switching to the other side in the new case. In addition, another Confrontation Clause case handed down earlier this year suggests that a majority of the Court may be looking to retreat. Sotomayor wrote an opinion allowing hearsay evidence given by a victim who was in the process of dying of gunshot wounds to be admitted—something that the 6th Amendment would ordinarily forbid—because it was it was not “testimonial.” In a scathing dissent, Scalia wrote that the majority’s interpretation of the victim’s remarks was “so transparently false that professing to believe it demeans this institution” and that Sotomayor’s opinion was “short on the facts, and short on the law.” Scalia’s dissent was unkind and uncivil—but it wasn’t wrong.

It will be interesting to see how this one comes out.

Our Domestic Military

[ 20 ] December 5, 2011 |

Balko is terrific on the militarization of local police forces.

Deciding not to Decide

[ 19 ] December 2, 2011 |

As Charlie Savage and Adam Serwer point out, the Senate yesterday decided to punt on the question of whether the executive can arbitrarily and indefinitely detain American citizens simply by declaring them terrorists.   While dismaying, this is part of an ongoing pattern many political scientists (including yours truly) have identified: legislators deliberately putting contested issues into the courts.    Issues like the constitutionality of arbitrary detention end up in the courts not because the judiciary is “usurping” legislative power but because that’s how legislative majorities want it.

As for how the Supreme Court will rule should they decide to take a case on the matter, their general pattern on such issues is deference to the executive branch.   It’s worth noting, however, that the Hamdi v. Rumsfeld dissent written by noted Trotskyite Antonin Scalia make clear that he doesn’t believe that the arbitrary detention of American citizens absent a suspension of habeas corpus is constitutional.   On the other hand, the only other justice to join Scalia’s opinion — Justice Stevens — is no longer on the bench, so I wouldn’t be terribly optimistic.

However, the bill passed by Senate did actually do some things to make the expansion of arbitrary executive power worse, as Adam notes:

The compromise amendment however, does nothing to address the Obama administration’s concerns about the bill. The Directors of the FBI and CIA, the secretary of defense, and the director of national intelligence have all said that the bill’s provision mandating military detention of non-citizen terror suspects apprehended on American soil would interfere with terrorism investigations and harm national security. That hasn’t changed. The question is whether or not the administration is willing to make good on its threat to veto the bill, or whether it was just bluffing.

I’m afraid I’m going to have to go with “just bluffing.”

…Obama is reiterating his opposition, which makes a mere bluff less likely; let’s hope I was wrong.

The Roberts Court Will Not Allow Any Justice to Stand

[ 2 ] November 30, 2011 |

Although it’s sort of touching that they think governors and prosecutors will take scientific findings showing evidence to be unreliable into account if appellate courts can’t.    The other salient fact about the case is Kagan joining the majority.

DNA and the Authoritarian Fantasy Life of Prosecutors

[ 87 ] November 29, 2011 |

Andrew Martin has a fascinating article about how things work in a winger-dominated DA’s office in Illinois.   First, people are convicted based almost entirely on not-very-plausible confessions extracted from the kind of marathon high-pressure interrogations that will produce many false positives.    And then, once a convicted defendant is essentially exonerated by DNA evidence, the prosecutors respond by trying them again (or refusing to try the real killers) based on baroque theories that would need substantially more coherence and underlying evidence to rise to the level of being “implausible”:

His theory for why there was sperm that did not come from Juan Rivera inside 11-year-old Holly Staker on the day she was murdered is, to his mind, simple and straightforward. She and her twin sister, Heather, were sexually active, Mermel argues, and Holly must have had sex with someone else before Rivera came along and raped (but didn’t ejaculate) and murdered her. There was scant evidence to support this sexual-activity theory, but Mermel dismissed that objection. “Nobody is going to admit to having sex with an 11-year-old girl, even if the statute of limitations has run out,” he told me. “But there was a lot of evidence that came to our office that these two girls were sexually active.”

Sure, we don’t have any evidence that this 11 year-old girl had sex the day she was raped and murdered by someone who apparently left no forensic evidence at the scene, but we have evidence that she was sexually active — conjecture is a kind of evidence, right? And evidence has come into our office! Not the kind of evidence that can be presented in open court or anything, but it’s out there!

An initial examination found no evidence of sexual assault in the case, and Hobbs never mentioned it in his confession. Two years after his arrest, though, a private laboratory hired by his lawyers discovered that there had been sperm in Laura’s vagina, anus and mouth, and they tested a sample. The defense lawyers immediately announced that DNA analysis showed the DNA did not match Hobbs’s.

When Mermel heard about the findings, he dismissed them and suggested that Laura could have got the sperm on her while playing in the woods, where couples might have sex.

Right. I’m sure this has happened to all of us — you go for a quick chaste stroll in the woods, and you come back with your genitals covered in semen. Happens all the time.

At least in the latter case, the innocent man is free, although the DA has refused to prosecute the probable killer identified by the DNA evidence. The first exonerated defendant remains in prison after being convicted yet again. Obviously, Rivera’s post-DNA convictions represent failures by the jury and/or defense counsel as well as the DA. But an interview with the victim’s guilt-ridden twin sister late in the article shows how the jury can err; no matter how ridiculous the DA’s theory, most people have no idea how unreliable confessions secured under coercive methods are. The DA’s office has no such excuse.

Page 2 of 1212345...10...Last »