Criminal Justice Section  


Criminal Justice Magazine
Fall 2003
Volume 18 Number 3

Cert Alert

Paul M. Rashkind

Paul M. Rashkind is a supervisory assistant federal public defender and chief of appeals for the Office of the Federal Public Defender, Southern District of Florida, in Miami. He also serves on the adjunct faculty of the University of Miami School of Law. He is the Section vice-chair for publications, chair of the Book Committee, and a contributing editor to Criminal Justice magazine.

End of 2002 Term; Preview of 2003

The Supreme Court closed its 2002–03 Term by deciding 12 cases significant to criminal law and granting certiorari in five others. Of the new cert grants, two address the exclusionary rule ( Seibert, Lidster), adding to the list of presently pending cases addressing various aspects of that rule ( Fellers, Patane, Gant, Pringle, and Groh, discussed in the spring 2003 issue of Criminal Justice magazine). Although not likely a harbinger for the other cases, the first of this group ( Kaupp) was decided in a per curiam opinion excluding a confession obtained after an arrest without probable cause.

State laws did not fare well. The Court struck down a state statute of limitations as violating the Ex Post Facto Clause ( Stogner), and used the Due Process Clause to find unconstitutional a state law criminalizing same-sex intimate sexual conduct among consenting adults ( Lawrence). And it forced a state supreme court to reconsider its retroactivity analysis as applied to an evolutionary development in the defense to statutory armed burglary ( Bunkley).

Convicted felons also fared poorly. Limitations on prison visits ( Overton) and public housing visits ( Hicks) were both upheld. A new cert grant will consider the prerequisites for an inmate’s suit for damages based on a prison’s administrative confinement conditions ( Muhammad).

Persons never charged or convicted fared poorly, too. In a suit for damages, the Court determined that the Fifth Amendment right against self-incrimination does not create a constitutional right not to be interrogated, except within the context of a criminal prosecution ( Chavez).

Criminal trials were the subject of two cases. The Court recognized the government’s limited right to involuntarily administer medication to render a mentally ill defendant competent for trial ( Sell). But, in a recently granted cert, it will reconsider the Confrontation Clause limitations on the admissibility at trial of interlocking confessions of a nontestifying codefendant ( Crawford).

The role of the federal judiciary was clarified by two decisions, one addressing the authority of federal magistrate judges ( Roell) and the other requiring only Article III judges to serve on federal appellate panels ( Ngyuen).

Habeas corpus cases helped close out the Term. The Court found ineffective assistance of defense counsel, holding that failure to conduct a proper investigation cannot be defended as a tactical error ( Wiggins), but it reversed a habeas writ where the federal court failed to focus its analysis as required by federal law ( Price). For next Term, the Court granted cert to clarify the exhaustion requirements necessary to pursue federal habeas corpus claims ( Baldwin).

Statutes of limitations: Ex Post Facto Clause. Stogner v. California, 123 S. Ct. 2246 (2003). California statute provided a one-year limitations period, following a report by the victim, for prosecution of child molestation charges. It resurrected the state’s right to prosecute for offenses preceding the law’s passage, for which the limitations period had lapsed. The U.S. Supreme Court struck down the amended statute of limitations as violating the Ex Post Facto Clause.

Fifth Amendment privilege to not be interrogated. Chavez v. Martinez, 123 S. Ct. 1994 (2003). While being treated for gunshot wounds, Martinez was interrogated by police officer Chavez, who never advised Martinez of his Miranda rights. Martinez admitted using heroin and stealing a police officer’s gun, but was never charged with any crime. He thereafter filed a 42 U.S.C. § 1983 lawsuit against Chavez for violating his Fifth Amendment right not to be a witness against himself and his Fourteenth Amendment substantive due process right to be free from coercive questioning. The Supreme Court held that Martinez was not deprived of a constitutional right. A plurality held that mere compulsive questioning, unrelated to a criminal case, does not violate the Fifth Amendment Self-Incrimination Clause, and, since Martinez’s words were never used against him in a criminal case, the questioning cannot be deemed unconstitutional. On the second issue, a majority remanded the question of whether Martinez may pursue a claim of liability for a substantive due process violation, along with the scope and merits of any such action that may be found open to him.

ÿ Deliberate failure to provide Miranda rights. Missouri v. Seibert, 123 S. Ct . 2091 ( cert. granted, May 19, 2003); decision below at 93 S.W.3d 700 (Mo. 2002). During the first part of a two-part interrogation, a police officer deliberately did not advise a defendant of his Miranda rights while the defendant was in custody at the police station. After securing an initial confession, the officer then read the defendant his Miranda rights, obtained a waiver, and secured a second confession, often making reference to the original confession. The Missouri Supreme Court reversed the conviction, finding that the second confession should not have been admitted, despite Oregon v. Elstad (holding that once Miranda rights are provided and waived, despite previous failures, subsequent statements are admissible; the Fourth Amendment’s exclusionary rule does not apply to unwarned interrogation under the Fifth Amendment). The U.S. Supreme Court granted certiorari, likely to discuss application of Elstad and, perhaps, to revisit it in light of Dickerson v. United States (reaffirming Miranda as constitutionally-based).

Exclusionary rule. Kaupp v. Texas, 123 S. Ct. 1843 (2003) ( per curiam). Police suspected Kaupp was involved in the disappearance of a teenage girl. Believing they lacked probable cause, police did not seek an arrest warrant and the district attorney declined a "pocket warrant" that would have permitted custodial questioning. Instead, police decided to confront Kaupp with the allegations, so they went to his home at three in the morning, where they were given entrance by his father. Police then went to his bedroom, awakened Kaupp with a flashlight, and told him they "need to go and talk." They then handcuffed Kaupp and took him, dressed only in a T-shirt and boxer shorts, to a patrol car. Soon after, they took him to the police station, removed the handcuffs and advised him of his Miranda rights. Kaupp then implicated himself in the death of the teenage girl. He moved to suppress his statement as the product of an illegal arrest. The state defended by arguing that no arrest occurred until after the confession—Kaupp consented to go with officers. The U.S. Supreme Court held that Kaupp was taken into custody without probable cause and remanded to determine if there is any undisclosed testimony that is "weighty enough" to override the clear force shown by the record-on-appeal; otherwise "the confession must be suppressed."

ÿ Roadblocks. Illinois v. Lidster, 123 S. Ct. 1928 ( cert. granted, May 5, 2003); decision below at 779 N.E.2d 855 (Ill. 2002). Chicago police set up a roadblock a week after a fatal hit-and-run accident at the location of the accident and at the same time of day, hoping to find witnesses or information about the crime. Each car was stopped for 15 to 20 seconds as police handed out flyers and asked motorists if they were in the area when the accident occurred. Motorists were not asked their names and their vehicles were not searched. The U.S. Supreme Court granted certiorari to review the reasonableness and constitutionality of the checkpoint’s use: Does Indianapolis v. Edmund, 531 U.S. 32 (2000) (limiting checkpoint roadblocks without specific cause) prohibit police checkpoints organized to investigate a prior offense, or are such checkpoints reasonable under the standard articulated in Brown v. Texas, 443 U.S. 47 (1979)?

Crimes: due process. Lawrence v. Texas, 123 S. Ct. 2472 (2003). In a case involving consensual private sex among adults, the Supreme Court overruled Bowers v. Hardwick, 478 U.S. 186 (1986), and held that a Texas statute criminalizing same-sex intimate sexual conduct violates vital interests in liberty and privacy under the Fourteenth Amendment’s Due Process Clause.

Defenses: evolving exceptions. Bunkley v. Florida, 123 S. Ct. 2020 (2003) ( per curiam). Bunkley committed a burglary of a closed, unoccupied restaurant. When he was arrested outside of the restaurant, police found a pocketknife, with a two- to three-inch blade, folded in his pocket. He was convicted of first-degree burglary and sentenced to the maximum, life imprisonment. If the crime was not enhanced by possession of a dangerous weapon—the pocketknife— it would have been a third-degree burglary, with a maximum penalty of five years’ imprisonment. Years later, in 1997, the Florida Supreme Court ruled that a pocketknife like the one possessed here was subject to the common pocketknife exception to the statutory definition of a weapon; the Florida court vacated the armed burglary conviction of that defendant. Bunkley sought the benefit of that ruling, but the Florida Supreme Court refused to do so, holding that the 1997 holding was an evolutionary development in the law, not to be applied retroactively. The U.S. Supreme Court vacated the Florida decision because it failed to determine whether the evolving "common pocketknife" exception to Florida’s definition of "weapon" encompassed a two-inch pocketknife by the time Bunkley’s conviction became final. On remand, the Florida court must reconsider its determination, under Fiore v. White, 531 U.S. 225 (2001): Was a pocketknife a weapon when Bunkley’s conviction became final? If not, he is entitled to relief regardless of any retroactivity analysis. If so, this case presents the question left open in Fiore.

Jurisdiction of magistrate judge to conduct civil trial. Roell v. Withrow, 123 S. Ct. 1696 (2003). Consent to a civil trial by a federal magistrate judge, as permitted by 28 U.S.C. § 636(c), may be inferred from a party’s conduct during litigation, even if the parties have not conformed to the written consent required by the statute.

ÿ Admission of codefendant’s interlocking statement at trial. Crawford v. Washington, 123 S. Ct. 2275, cert. granted, (2003); decision below at 54 P.3d 656 (Wash. 2002). The defendant’s wife was present when he committed an assault by stabbing. Both gave statements to police, which interlocked. Both gave second statements, which were different from their first statements, but also interlocked. The wife’s statement was that the victim reached for something after the stabbing, while the defendant claimed the victim already had something in his hand at the time of the stabbing. Both were charged and tried together. The husband claimed he acted in self-defense and objected to admission of his wife’s statement by invoking the marital privilege. Although the wife did not testify at trial, the trial court admitted both of the wife’s statements, holding that this did not violate the marital privilege and that the statements were sufficiently reliable to avoid Confrontation Clause concerns. The Washington Supreme Court sustained the husband’s conviction because the statements were sufficiently interlocking (both husband and wife were equally unsure if the victim was holding a weapon) and the statements were sufficiently reliable. The certiorari petition granted by the U.S. Supreme Court pointed out that, under current law, any reliable hearsay statement is admissible, which confuses proper Confrontation Clause analysis; it seeks a rule that out-of-court statements in "testimonial materials" should be barred by a proper Confrontation Clause analysis.

Forced use of antipsychotic drugs. Sell v. United States, 123 S. Ct. 2174 (2003). The government has the power to involuntarily administer antipsychotic drugs to render a mentally ill defendant competent to stand trial in limited circumstances in which courts must balance several factors. Given the necessary inquiry, the Eighth Circuit’s decision permitting forced medication of a nondangerous defendant in order to permit prosecuting a nonviolent fraud was remanded for additional proceedings about the effect of the drugs on the fairness of a trial and the importance to the government of advancing the trial date.

Composition of appellate court panel. Nguyen v. United States, 123 S. Ct. 2130 (2003). The defendants were convicted of conspiracy to import methamphetamine. The Ninth Circuit affirmed the convictions, but the appellate panel included the chief district judge for the Northern District of Mariana Islands, who is not an Article III judge. The Supreme Court ruled that the Ninth Circuit panel did not have authority to decide the appeal. Although the two Article III judges would have constituted a quorum, it is doubtful they were authorized to serve by themselves as a panel, so the appeal was remanded for reconsideration by a properly constituted appellate panel.

Limits on prison visitation. Overton v. Bazzetta, 123 S. Ct. 2162 (2003). The Michigan Department of Corrections promulgated regulations for noncontact prison visits, severely limiting visitation. In addition to attorney and clergy visits, visitation by family members was limited to those on an approved list, including immediate family members and 10 others. Visits by children are only permitted if they are the children, stepchildren, grandchildren, or siblings of an inmate, but not if parental rights have been terminated. Former prisoners are not permitted to visit. And, if an inmate commits two substance abuse violations, all visitation other than legal and clergy are prohibited, subject to reinstatement after two years. Prisoners and family members sued under 42 U.S.C. § 1983, claiming the regulations violated the First, Eighth, and Fourteenth Amendments. The U.S. Supreme Court held that the regulations can be sustained as bearing a rational relation to legitimate penal interests. In addition, withholding visitation from substance abusers, subject to reinstatement, does not constitute cruel and unusual punishment.

ÿ Prerequisites to challenging conditions of confinement. Muhammad v. Close, 123 S. Ct. 2573 ( cert. granted, June 16, 2003); decision below at 47 Fed. Appx. 738 (6th Cir. 2002). Under Heck v. Humphrey, 512 U.S. 477 (1994), in order for an inmate to seek damages in a 42 U.S.C. § 1983 action for an unconstitutional conviction or imprisonment, the inmate must first establish that the conviction was reversed on direct appeal, expunged, declared invalid, or called into question in a federal habeas corpus proceeding. This case raises two Heck-related issues: (1) Does Heck’s prerequisite apply when the section 1983 proceeding only seeks damages for the conditions of confinement, not the duration of confinement? (2) Where the inmate challenges the conditions of a completed confinement in administrative detention, must the inmate satisfy the favorable termination requirement?

Limiting felons’ access to public housing. Virginia v. Hicks, 123 S. Ct. 2191 (2003). The Supreme Court rejected a First Amendment overbreadth challenge to a regulatory scheme for a public housing project. The defendant was prosecuted for trespass for returning to the project after notice that he was not permitted on the property. Although one provision gave an official discretion to deny legitimate persons access to the property, even those exercising protected First Amendment rights, the Court found that the law did not affect a substantial amount of protected First Amendment activity in relation to the unprotected activity that was legitimately being regulated.

ÿ Exhaustion: fairly presenting issues to state court. Baldwin v. Reese, 123 S. Ct. 2213 ( cert. granted, May 27, 2003); decision below at 282 F.3d 1184 (9th Cir. 2002). Do prisoners exhaust a federal issue in state court when they neither cite to the state court a specific federal provision nor authority decided on the basis of federal law? The court of appeals found the issue of ineffective assistance of counsel was fairly presented to the state supreme court because the issue was readily apparent from the underlying decision of the state intermediate appellate court.

Factual determinations vs. legal determinations. Price v. Vincent, 123 S. Ct. 1848 (2003). The defendant claimed that, during his murder trial, the trial judge granted a judgment of acquittal and rescinded it the following day, allowing the case to go to the jury. The defendant argued successfully in federal habeas proceedings that this violated the Double Jeopardy Clause, as applied to the states under the Fourteenth Amendment. This same issue was raised unsuccessfully on direct appeal in state court, so the Supreme Court held that federal review was limited by section 2254(d), prohibiting relief unless (1) the state decision was contrary to, or an unreasonable application of, established federal law, or (2) the state decision resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence in the state court proceeding. Here, the trial judge’s first ruling was unclear, he never reduced the acquittal to a written judgment, and receded from any idea he had already granted the acquittal when arguments resumed the next day—facts relied upon by the state court in denying double jeopardy relief. The Supreme Court reversed the habeas because, when examined through the lens required by 2254(d), the state decision was not contrary to established federal law and was not based upon an unreasonable determination of the facts contained in the state proceedings.

Tactics vs. errors. Wiggins v. Smith, 123 S. Ct. 2527 (2003). The defendant in this state death penalty case was accused of drowning an elderly woman in her bathtub. The case was proved by circumstantial evidence. Rather than present mitigating evidence during the penalty phase, defense counsel attempted to retry the defendant’s guilt. Counsel failed to develop or present to the jury the defendant’s social history, harsh childhood, and sub-average intelligence. The conviction was sustained by state courts, which concluded that counsel’s penalty phase representation was adequate, based on tactical choices. The Supreme Court held that counsel could not reasonably be said to have made a tactical decision to not present defenses, when she never investigated the defenses she failed to present. It found the uninvestigated mitigating evidence to be powerful and that a competent lawyer would have introduced it at the sentencing phase.

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