... and Justice for All

A Step Toward Equal Justice Under Law; The Case for a Defender General

The Department of Justice and the Solicitor General's office represent the United States government in criminal cases in the Supreme Court. But there is no similar office that represents criminal defendants before or in the Supreme Court. Does this absence raise an impediment to equal justice under law? A good case for a Defender General's office is made by two law professors, Daniel Epps of the Washington University School of Law and William Ortman at Wayne State University, in The Atlantic: One Change That Could Make American Criminal Justice Fairer.

Robert L. Abell
www.RobertAbellLaw.com

 

Calvin Duncan; the hard way to Justice

Sometimes the law yields a good story of redemption and persistence. Calvin Duncan, who served some 23 years at Louisiana's Angola State Penitentiary and became a renowned jailhouse lawyer is profiled in the New York Times: A Relentless Jailhouse Lawyer Propels A Case to the Supreme Court. 

Remember, every now and then although not as often as one might reasonably hopes true justice occurs however unlikely.

Robert L. Abell
www.RobertAbellLaw.com

Form Over Substance; the Sixth Circuit Dives Over the Edge

Form too often is elevated way above substance and the Sixth Circuit's decision in United States v. Mitchell is a disturbing illustration of the point, as well as more wasted and empty motion that could be thought reasonable.

The defendant, Stephen Mitchell, had three prior felony convictions when he was convicted of violating 18 U.S.C. § 922(g)(felon in possession of a firearm). The district court found that he fell under the Armed Career Criminal Act (ACCA) and sentenced him to 250 months (20 years, 10 months). This was in about 2000. 

In the intervening 18 years or so since Mitchell was sentenced initially, the Supreme Court has invalidated portions of the ACCA. See Welch v. United States, 136 SCt 1257 (2016); Johnson v. United States, 135 SCT 2551 (2015). These decisions benefited Mitchell, because they precluded application of the ACCA to him. This meant that the longest sentence that Mitchell could receive lawfully was the 10 year maximum that goes with a violated of § 922(g). Problem was, though, Mitchell had already served in prison about 7-8 years more than the law allows. 

The district court imposed a sentence of time served and three years supervised release. This would seem enough to end it; Mitchell had already served many more years than could be imposed lawfully.

Nevertheless, both the government and Mitchell appealed.

The government's appeal went nowhere, but the Sixth Circuit ruled that the district court erred in imposing a sentence of "time served." The explanation: a time-served sentence "is inappropriate relief when the habeas petitioner has served a sentence greater than the statutory maximum." Accordingly, the case was remanded for resentencing.

One wonders why? The district court can't impose a sentence of 10 years, the statutory maximum, or even less, because Mitchell has already served many more than 10 years. It would seem to bring the judicial system into disrepute to engage in such fiction. What other alternatives are there, and, whatever they may be, what is accomplished by trundling through them. This is form over substance and wasted motion near its highest degree.

And so it goes.

Robert L. Abell
www.RobertAbellLaw.com

 

Does the Fourth Amendment Permit a Warrantless Search of a Vehicle Parked in the Driveway?

"No" the Supreme Court has answered in Collins v. Virginia. The case arises from an intersection of two prongs to the Fourth Amendment: (1) the protection offered a home and its immediate surroundings (called "curtilage") and, (2) the automobile (better called the motor vehicle) exception to the warrant requirement. 

Here's what happened. Police became suspicious that Ryan Collins had and was operating a stolen motorcycle. They set up surveillance of Collins'residence and saw parked there at the top of the driveway a motorcycle covered by a tarp. A police officer walked up the driveway, lifted up the tarp, recorded the license plate and VIN numbers, which were then used to confirm that the motorcycle was stolen. Collins was later arrested at the house, while standing in its front door, and charged with receiving stolen property.

Collins argued that the Fourth Amendment prohibited police from walking up the driveway of his residence and examining the motorcycle. The state, having nothing better to rely upon, argued that the vehicle exception to the Fourth Amendment applied and allowed the warrantless search.

The Court held that the vehicle "exception [to the Fourth Amendment] does not permit an officer without a warrant to enter a home or its curtilage in order to search the vehicle therein."

This seems an easy case and, indeed, the ruling commanded an 8-1 majority. Unsurprisingly, Justice Alito dissented and colorfully lambasted the majority:

An ordinary person of common sense would react to the Court's decision the way Mr. Bumble famously responded when told about a legal rule that did not comport with the reality of everyday life. If that is the law, he exclaimed, "the law is a ass – a idiot." C. Dickens, Oliver Twist 277 (1867).

That is harsh and misdirected criticism since all the Court was doing was applying the very core of the Fourth Amendment's purpose:

• When it comes to the Fourth Amendment, the home is first among equals. Florida v. Jardines, 569 U.S. 1, 6 (2013).
  
  
• At the Amendment's very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. Silverman v. United States, 365 U.S. 505, 511 (1961).
  
  
• To give full practical effect to that right, the court considers curtilage – "the area 'immediately surrounding and associated with the home -- to be part of the home itself for Fourth Amendment purposes. Oliver v. United States, 466 U.S. 170, 180 (1984).
  
  
• The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened. California v. Ciraolo, 476 U.S. 207, 212-13 (1986).

Justice Alito will likely go his entire tenure on the Supreme Court without ever voting for a criminal defendant; for some umpires with some batters it is a strike every time. According to him, government agents should be able to walk right onto your property and rummage around in your belongings. Wake up, Sam!

Robert L. Abell
www.RobertAbellLaw.com

 

Does the Fourth Amendment Apply When a Rental Car is Stopped and the Driver Is Not an Authorized Driver?

Does the Fourth Amendment apply when a rental car is stopped and the driver is not an authorized driver? As a general rule, yes, the Supreme Court ruled recently in Byrd v. United States.

Terrence Byrd and his girlfriend, Latasha Reed, drove to Budget car rental center. Reed went in and rented a Ford Fusion, while Byrd stayed in his car. Reed signed the rental contract stating that she would be the only driver, and it included notice that the agreement would be violated if an unauthorized driver drove the vehicle. Nevertheless, Byrd drove off in the Fusion and Reed left driving Byrd's car, a Honda.

Byrd headed toward Pittsburgh. He provoked suspicion, according to the Court, "because he was driving with his hands at the '10 and 2' position on the steering wheel, sitting far back from the steering wheel, and driving a rental car." The opinion does not identify Byrd's race, but that explanation strongly suggests that Byrd provoked suspicion for driving while black. In any event, Byrd was stopped "for a possible traffic infraction." The police officer described him as "visibly nervous." After inspecting the rental agreement and finding that Byrd was not an authorized driver, the law enforcement officers decided that Byrd had no Fourth Amendment protections, search the car and recovered drugs.

The Court ruled in Byrd's favor holding that, "as a general rule, someone an otherwise lawful possession and control of a rental car is a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver."

The Court didn't give Byrd a complete victory, however. The case was sent back to the lower courts to address the question of whether one who intentionally uses a third-party to procure a rental car by fraudulent scheme for the purpose of committing a crime may have Fourth Amendment protections. In other words, did Byrd use Reed to get a rental car for the purpose of using the rental car to deliver drugs to Pittsburgh?

And so it goes.

Robert L. Abell
www.RobertAbellLaw.com

Did Justice Alito Bring Fake News to the Supreme Court?

Sometimes (they say) a judge faced with a record compelling a result that he does not agree with or wish will reach for a liferaft, a way out.  Dana Milbank sugggests in the Washington Post, Fake News Comes to the Supreme Court, that Justice Alito may have resorted to "fake news" in the political gerrymandering case argued earlier this week. 

And so it goes.

My prediction on the case: the Supreme Court announces a very cumbersome, opaque rule to the effect that gerrymandering can rise to a constitutional violation that is so opaque that it is never violated.

Robert L. Abell
www.RobertAbellLaw.com

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Justice Ginsburg on the Upcoming Supreme Court Term

Justice Ruth Bader Ginsburg held forth recently on the Supreme Court's upcoming term reports Adam Liptak, the New York Times' Supreme Court reporter, On Justice Ginsburg's Summer Docket: Blunt Talk on Big Cases. Some of the cases that will find most popular discussion present issues of privacy rights in information held by cellphone companies, religious objections to same-sex marriages and political partisan gerrymandering. 

My predictions on these three: (1) the Court rules that a warrant is necessary for the state to obtain information from your cellphone company that reflects your location; (2) a private business may refuse to do business with a couple having a same-sex marriage on religious grounds; and, (3) politically partisan gerrymandering is bad and it will be deemed to cross constitutional lines in certain limited circumstances, those being so limited that it never will be recognized. In other words, partisan gerrymandering can be unconstitutional but it will be impossible to prove. 

Robert L. Abell
www.RobertAbellLaw.com

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Supreme Court to Decide Whether Search Warrant Is Needed for Police to Obtain Your Cellphone Records

The Supreme Court announced today that it was accepting for review a case that will require it to decide whether law enforcement agencies must obtain a search warrant to get your cellphone records. The case is Carpenter v. United States. Last year, in a split decision, the Sixth Circuit ruled that no warrant was necessary. The Washington Post reports further, Supreme Court to decide if a warrant is needed to track a suspect through cellphone records. 

Robert L. Abell
www.RobertAbellLaw.com

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Judge Gorsuch Squirms Some In Questioning by Senator Franken

This exchange between Senator Al Franken and Judge Gorsuch, where the Judge voted to uphold the firing of a truck-driver who made a decision to not operate a tractor-trailer on an interstate highway in a manifestly unsafe condition (a point that Judge Gorsuch agrees with) and not to freeze to death shows some of holes in the good Judge's ability: to recognize the reality of the case in front of him.

 

This is actually a pretty easy case; that Gorsuch blew it so badly does cast doubt on his judgment.

Robert L. Abell
www.RobertAbellLaw.com

Suggestions for Judge Gorsuch's Confirmation Hearings

The hearings as to Judge Neil Gorsuch's nomination to the Supreme Court start tomorrow. Jeff Greenfield offers some suggested questions in Politico: What the Senate Should Ask Judge Gorsuch. I think Mr. Greenfield an astute observer of the Washington scene and, in that context, his suggestions aren't half-bad.  But my suggested questions are better, much better: Some Questions for Judge Gorsuch.

Judge Gorsuch will be confirmed for the Supreme Court easily, although there will be significant opposition from the Senate Democrats, as there should be following the Republican reaction to the nomination last year of Merrick Garland.

Robert L. Abell
www.RobertAbellLaw.com

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