This site took a long snooze, which included several trials, writing a book (still in a drawer), and changing PD offices.
It’s coming back to life, and will include some cross posts with my new site besustained.org.
This site took a long snooze, which included several trials, writing a book (still in a drawer), and changing PD offices.
It’s coming back to life, and will include some cross posts with my new site besustained.org.
In 1991, I had a summer filled with aha, light-bulb, found-my-calling moments, when I worked as a student investigator at the Public Defender Service in Washington, DC. The first time I watched a young men being led into a courtroom in custody and a public defender fighting for his freedom, I connected with a sense of purpose. Even though I was deeply anxious about public speaking (still am), I had the crazy idea that maybe I was meant to do that thing.
I was filled with pride and anticipation when I joined the Alameda County Public Defender in Oakland, California, an office a few miles away from the Berkeley house I was born in.
This photo, after one of my first misdemeanor trials, shows me holding the eagle art we posed with after an acquittal—the eagle is swooping down toward a mouse on the ground; the mouse is flipping off the eagle. I couldn’t get enough. I missed weddings, family reunions and funerals for trials. I worked a lot. All. The. Time.
Seven years later, I slid into my cubicle desk, opened a document, and watched words appear on the screen that seemed typed by hands disconnected from the rest of me. I was surprised and confused to see my own resignation letter appearing in front of me.
I was 33 years old, seven years into a public defender career I thought I would stay in forever. I had no job lined up, no idea how I’d pay the bills. It didn’t feel like a decision. It felt like I couldn’t stay there for five more minutes, like there was no oxygen left in the room. I fled the blur of motions, trials, midnight laundry, clients dying, vending machine lunches. Burnout.
I didn’t practice law for three years. I had this idea that doing “happy things” would make me happy, so I taught yoga and wrote for magazines and rode a motorcycle. When I wasn’t sufficiently brimming with happiness, I danced on rooftops in Cuba, ran a marathon and spent hours in my darkroom. The happiness quest made me somewhat happier until it didn’t. I felt separated from my own sense of purpose. After three years, I went back to being a public defender.
Since returning to public defense in 2007, I’ve explored how to do it differently. I think a lot about how to stay, how to develop strategies to re-charge my batteries and sustain this work.
At first, I kept this exploration to myself. Public defense is still a professions where tough it out, don’t complain, don’t show weakness culture prevails. When I occasionally whispered to colleagues, I actually burned out and left for several years, the response was not what I expected (awkward sidelong glances and people skittering away from me). It was an outpouring of similar stories. A comment became a conversation became a talk became a well-being workshop became a series of workshops that can’t begin to keep up with the demand. There seem to be many, many public defenders who are eager to have this discussion. How do we stay? We don’t want to leave but we are struggling. How do we sustain this work?
I have some ideas and so I created a site to continue the discussion. Please tell me what you think and send me your ideas if you’d like to contribute to this site.
And all you fierce freedom fighter public defenders out there, please take care of yourselves.
Last week, the Justice Department and the FBI formally acknowledged that 26 of 28 examiners in an elite FBI forensic unit gave flawed hair comparison testimony in trials for two decades, until DNA testing became available to more accurately test the hair in 2000. Flawed forensic testimony was admitted in 95% of the trials in the re-examined cases (342 cases reviewed so far, 1200 remain). The 342 reviewed cases include 32 defendants sentenced to death. Of those, 14 have been executed or died in prison.
Witnesses presented testimony that hair associated with a crime “matched” the defendant with near certainty, citing misleading statstics. In one case, later testing revealed the “matching hair” to be a dog hair. FBI hair analysts “committed widespread, systematic error, grossly exaggerating the significance of their data under oath with the consiquence of unfairly bolstering the prosecution’s case,” said Peter Neufeld, Co-Director of the Innocence Project. Given that FBI examiners trained hundreds of state hair examiners in annual training courses, the errors surely extend to coutless state cases not yet included in this review.
As many, many people have written this week (here , here, here, here, here , here), this is a big deal. Spencer Hsu wrote in the Washinton Post, “The admissions mark a watershed in one of the country’s largest forensic scandals, highlighting the failure of the nation’s courts for decades to keep bogus scientific information from juries.”
Finally, a watershed moment! Or is it? How long has it been clear that the misuse of forensic science is causing miscarriages of justice by erroneously claiming to identify defendants by matching hair samples, fibers, or bite marks? By claiming an accident was arson? In the New York Times, Eric Lander, founding director of the Broad Institute of MIT and Harvard, makes clear that this is not a new concern: “A 2009 report by the National Research Council, an arm of the National Academies, found that apart from DNA testing, no forensic method had been rigorously shown to consistently and reliably demonstrate a connection between evidence and a specific person.” As Scott Greenfield writes, “we’ve rested our faith in crap, scientifically unproven and unjustifiable, because people dressed in expert suits took the witness stand, offered jargonized mumbo-jumbo in official sounding tones, and promised that they were right, because science.”
Based on historical review of forensic inaccuracy, widespread error, and numerous lab scandals, there are calls for reform. There is a new national commission tasked with bringing rigor to forensic science. As Eric Lander asserts, “It is now abundantly clear that an expert’s opinion is not a reliable basis for drawing connections between evidence samples and a particular person. No expert should be permitted to testify without showing three things: a public database of patterns from many representative samples; precise and objective criteria for declaring matches; and peer-reviewed published studies that validate the methods.”
You know what still happens when you walk into a trial court and ask for a full hearing on the admissibility and scope of fingerprint or ballistics evidence? Too often, the judge and prosecutor look at you like you’re bonkers, tilting at windmills. Or worse, engaging in shenanigans by creating unwarranted skepticism of accurate science rather than exposing true flaws in non-science that has been accepted with insufficient scrutiny. They give you rolled eyes, exasperated sighs. They have inexplicable confidence that errors only happen in other cases, in other courtrooms. Scott Greenfielf wrote, as this latest story was breaking, “Thing is, I can’t bear writing another post about junk science. We’ve known the answer for decades, but judges don’t give a damn.”
As public defenders, we have the responsibility of raising these issues in the trial courts and reminding prosecutors and judges that it is not acceptable to choose expediency over accuracy. The goal of increasing accuracy of evidence must be shared by all parties in the justice system. As Eric Lander writes, “Insistence on high-quality forensics should unite law enforcement, prosecutors and defense attorneys. It’s a matter of both justice and safety: No one wants innocent defendants in jail — or executed — while true perpetrators are still at large.”
Sonoma County has had a dedicated Early Case Resolution (ECR) court since 2009. Felony criminal cases (other than treatment-qualifying nonviolent drug possession offenses) begin in ECR, a courtroom that has the goal of resolving a high percentage of cases as early as possible, in order to reduce court congestion and costs. This week, the Criminal Law section of the Sonoma County Bar Association raised the question of whether the ECR court should continue to exist.
This question was raised the same week as the publication of federal Judge Jed S. Rakoff’s article “Why Innocent People Plead Guilty,” which raises concerns about current practices of plea bargaining. Rakoff is a United States District Judge on senior status for the Southern District of New York. Though Rakoff references federal practice, I believe he raises some of the same concerns for due process and factual accuracy that are raised in local scrutiny of our own ECR court.
First, Rakoff sets forth federal statistics: “In 2013, while 8 percent of all federal criminal charges were dismissed (either because of a mistake in fact or law or because the defendant had decided to cooperate), more than 97 percent of the remainder were resolved through plea bargains, and fewer than 3 percent went to trial.”
A review after the first year of ECR in Sonoma County placed its 2009 case resolution rate at 83 percent. (Jan. 13, 2010 Press Democrat article here.) (This does not imply that the remaining 17% go to trial. The majority are resolved through plea bargains in the trial courts, so they are not counted as early resolutions.) Based on conversation with colleagues who have staffed the ECR courtroom and regularly reviewed the statistical reports, it appears that the resolution rate has varied in the low eighties throughout the existence of ECR.
Since its creation in 2009, there has been a mix of praise for and concern about ECR. In 2011, “Some defense lawyers said they feel pressured to plea before having all evidence before them. And at least one law enforcement source said the emphasis on clearance rates hurts public safety.” (Press Democrat article here.)
On November 20, 2014, the Criminal Law Section of the Sonoma County Bar Association posed these questions: is the pressure to resolve cases early compromising due process? Is there a prosecutorial policy that the ECR offer is the “best offer” and later offers will only increase, never decrease, no matter what information is revealed by litigation or investigation? Are defendants being punished for requesting preliminary hearings?
Rakoff’s observations are applicable to this discussion and his article should be read in its entirety. He first addresses the power imbalance in current plea bargaining, in which prosecutors can readily overpower the defense and force guilty pleas. He describes how prosecutorial charging decisions impact bargaining: “it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.” He describes how the defense is disadvantaged in situations of high pressure to plead early: “the information-deprived defense lawyer, typically within a few days after the arrest, meets with the overconfident prosecutor, who makes clear that, unless the case can be promptly resolved by a plea bargain, he intends to charge the defendant with the most severe offenses he can prove.” He describes how unequal and unfair the process has become: “The Supreme Court’s suggestion that a plea bargain is a fair and voluntary contractual arrangement between two relatively equal parties is a total myth: it is much more like a ‘contract of adhesion’ in which one party can effectively force its will on the other party.”
One obvious impact of pressure to resolve cases early–prior to investigation, thorough discussion, and evidentiary hearing or trial– is that a defendant does not get his or her day in court. The trial system does not have the opportunity to achieve its truth-seeking function. Cases that are mischarged, overcharged, or mitigated may not be identified. There is a tendency toward inflated charges and inflated sentences.
The more alarming concern is the reality that innocent people plead guilty. Every day. In a courtroom near you. Rakoff writes, “possibly the gravest objection of all, the prosecutor-dictated plea bargain system, by creating such inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed.”
Rakoff tries to quantify the problem. “How prevalent is the phenomenon of innocent people pleading guilty? The few criminologists who have thus far investigated the phenomenon estimate that the overall rate for convicted felons as a whole is between 2 percent and 8 percent. The size of that range suggests the imperfection of the data; but let us suppose that it is even lower, say, no more than 1 percent. When you recall that, of the 2.2 million Americans in prison, over 2 million are there because of plea bargains, we are then talking about an estimated 20,000 persons, or more, who are in prison for crimes to which they pleaded guilty but did not in fact commit.” (I’ve also written previously here about the error rate of the criminal justice system.)
We are not immune from this problem here in Sonoma County. While the rate is unknown, it is undeniable that innocent people are pleading guilty to crimes that they did not commit. Pressure to resolve cases early, under threat of increased punishment, raises the risk of wrongful conviction. In a system with insufficient resources to have a jury trial in every criminal case, this risk of wrongful conviction is balanced against pressures for efficiency. In the balancing of court costs against due process, concerns for fair and factually accurate outcomes should not be overlooked.
I’m packing up my juvenile office this week, moving back to trying adult felony cases. For eighteen months, I’ve been making the long commute through the rolling vineyards of Sonoma Valley to the Juvenile Justice Center. Tucked incongruously behind two swanky wineries (Ledson and St. Francis) are the juvenile hall, two courtrooms, and the juvenile branch offices of the public defender, district attorney and probation departments.
Within the first week at juvie, I was assigned the case* of a kid I’ll call Jamie, who had previously been placed on deferred entry of judgment (DEOJ), which is a special category of probation supervision available in California after a kid admits a first offense. On DEOJ, a minor has an opportunity to successfully complete one year of probation and have the case dismissed and all records sealed. This is about as close as it gets to going back to pre-arrest status, as if it never happened. Jamie had been working hard to complete counseling and community service; Jamie wanted that successful dismissal and record sealing.
However, Jamie faced a new petition to cancel DEOJ for giving a urine sample that tested positive for marijuana. But Jamie denied using marijuana and seemed baffled by the test; the parents concurred that they monitored Jamie closely and did not suspect any drug use. We decided to request an evidentiary hearing so I could ask the criminalist who did the urinalysis some questions about false positives, creatinine ratios and the failure to do a confirmatory test.
When we went to court to set the hearing for Jamie’s case, the judge announced, “a noncompliance petition has been filed, DEOJ is lifted, we’ll set sentencing in two weeks—“
“Wait,” I said, startled. “I object to the court setting sentencing. The violation hasn’t been proven. Jamie is denying the allegation and requesting an evidentiary hearing.”
“Denied! Set for sentencing! Read the statute!” The judge shouted. The next day, on the wall of the courtroom, there was a giant enlargement of the portion of the statute containing the phrase “must lift DEOJ.”
I read the statute (Welfare and Institutions code section 793) and the pertinent rules of court (Rules 5.800(h)(2) and 5.580.). Minors facing DEOJ termination had a right to an evidentiary hearing at which the violation had to be proven by a preponderance of the evidence, prior to the lifting of DEOJ and scheduling of the sentencing hearing. I filed a brief outlining the pertinent law.
Then I received a probation report that stated that Jamie had admitted the new violation in court.
“Why does it say it was admitted when it was actually denied?” I asked the probation officer.
“The court minutes say it was admitted,” he said.
“That can’t be,” I assured him. I checked the minutes. He was right.
“Why does it say it was admitted when it was actually denied?” I asked the court clerk.
“I can’t go to the next screen unless I check that box,” she replied. “I have to move to the next case. I have to move out of that screen to finish the minutes and go to the next case.”
“Can’t you just check that it was denied?” I asked.
“Not unless it’s set for hearing. If it’s set for sentencing, I have to check that it was admitted,” she explained.
Well, of course. Deep in this particular rabbit hole, it makes perfect sense that the computer program requires that denials become admissions, and that kids be sentenced for conduct that has been neither proven nor admitted.
On the date set to argue the motion I’d filed requesting an evidentiary hearing for Jamie, I stood ready at the front of the courtroom, with a stack of cases and statutes tabbed and highlighted in front of me. I was anticipating a showdown. Instead, the judge quickly and anticlimactically conceded that Jamie had a right to a hearing.
I won! I thought. I believed—naively even after all these years—that DEOJ violation cases would be handled differently going forward. I expected the kids to be asked if they admitted or denied the allegation, and whether they requested a hearing. I thought wrong. When the next DEOJ non-compliance petition came in, the judge lifted DEOJ and set sentencing. Over the course of a year, one judge routinely granted DEOJ non-compliance hearings and two refused. It became clear that I’d have to litigate the same issue over and over again, case by case.
A week ago, more than a year after I first started objecting to this truncated DEOJ violation procedure, I watched a private attorney request a hearing on a DEOJ non-compliance petition.
“Denied!” screamed the judge. In unison, the judge and the prosecutor and the probation officer pointed to the giant enlargement of the phrase on the wall “must lift DEOJ.”
“I’ve never seen anything like it,” the attorney marveled to me in the lobby ousted the courtroom. “From allegation straight to sentencing with no trial or hearing!”
“Speeds things up if you don’t require any evidence and cut out the opportunity to defend against the allegation,” I joked. He looked glum.“The law’s on your side on this,” I reassured him. “So if you file your brief and ignore everyone yelling at you and push for the hearing, you’ll probably get the hearing.”
This is the special insanity we face as defense attorneys. We push the same boulder up the same hill over and over like Sisyphus, in a system that too often prioritizes expediency over fairness.
*This “case” is not one actual case, but a composite of similar cases, with no actual names or case-specific confidential information revealed and several details changed to protect client confidentiality.
The apples are in.
We live on a gravenstein orchard. In our region, many apple trees have been cut down and replaced by the more lucrative grapes, but some of us still grow apples. The gravensteins have a short, early season and don’t transport well. So they lack market value, despite their perfect blend of sweet and tart.
During these weeks when the apples are ready, I hustle home from court to catch them at the perfect ripeness, when they are golden-chartreuse with crimson stripes, and fall into my hand at the lightest touch. After dinner, I stir cinnamon and ground cloves into a giant pot of applesauce, sometimes so long that it reduces to smooth apple butter. I fill mason jars to gift to friends and family, sealing the jars with a simple boiling water process that has been used for two hundred years.
Working in the criminal justice system can break your heart every single day. Last week my fifteen year old client was sent to the Department of Juvenile Justice, aka prison for kids. I fought this outcome for months with every hearing and motion I could. In the end, I felt I’d failed my client. I swore. I paced. I drank a bit of scotch. Then I picked tomatoes. And zucchini. And apples.
I picked vegetables to grill at our annual apple harvest party this past weekend. Friends streamed in with bowls of delicious food, and empty baskets to fill with apples. Kids climbed apple trees and ate apple crisp. The band played and we drank hard cider. I watched my dad and my daughter kneel in the garden and dig up a giant pile of potatoes to grill, with fish caught by friends and chickens raised by neighbors.
This connection to a small agricultural community fuels my optimism, even for the broken, heart-wrenching criminal justice system. In a small community, we rely on each other, we take care of each other, we value each person. Though I have always believed it, I find it easier to argue that it is flat out wrong to throw a person away, even for a terrible act. Some of my clients participate in a restorative justice program, during which they seek to repair damage they’ve caused and ask the community to welcome them back. Despite mean-spirited and unforgiving societal trends, many are given a second chance. I hold out hope that my fifteen year old client will find his way back to earn a second chance in our community.
When I started as a PD, I went to a high volume urban office in search of interesting, abundant cases. Fast pace, action, front lines. My counterbalance to tough days as a young PD in the Oakland trenches was riding a motorcycle and staying out too late at dive bars. Now my counterbalance is plunging my hands into the warm dirt in the garden.
Life in the country gives me a new perspective about my place in the struggle for big goals like fairness and justice. Sometimes they still seem lost, unattainable. Other times, I see that they are always there, inevitable and right, emerging bit by bit against all odds, like a root crawling along a crack in the pavement.
We prune them and stake them and tend them, but our apple trees have a life of their own. The gravensteins in our orchard grew through the civil rights movement, through the punitive trend of mandatory minimums, and into the current movement to reduce over incarceration. They grew in the El Niño rains we had several years ago, and in the drought this year.
Since I’m new to this farming thing, I was foolish enough to ask, because of the severe drought, “will any apples grow this year?” In fact, the drought has made the apples sweeter.
It isn’t often that I feel warm and fuzzy toward all nine members of SCOTUS. Today is one of those days. I’ve written several times about the pending cell phone search cases, Riley and Wurie, and have expressed hope that SCOTUS would issue a clear decision that a warrant is required to search a cell phone. Today, SCOTUS issued that decision (here is the Riley decision). The decision was unanimous, written by Chief Justice John Roberts.
For years, police officers in California have been searching electronic devices incident to arrest—first pagers, then flip phones, now smartphones. Officers have been reviewing all the data “incident to arrest,” even after contacting a person for a minor offense. Phones are easily unlocked, passcodes easily defeated. Jaywalking cases turn into strike felony cases. Minor diving offenses lead to officers connecting a seized cell phone to a Cellbrite machine and downloading the entire contents: every contact, text, and photo. Along with a few text messages that may suggest a drug transaction, now the discovery I receive often includes a stack of disks containing the full phone download of every intimate photo, email from a doctor, banking passcodes stored in contacts, and lovers’ quarrels by text message.
This is what happened to David Riley. He was stopped for driving with expired car registration. After searching his car and his cell phone, he was linked (by cell phone data) to a prior gang shooting, and was convicted of attempted murder and sentenced to fifteen years in prison. Some say that’s good police work. Others say they don’t want police looking so easily at the last symptom searched on WebMD.
In favor of the searches, the government argued that cell phone searches fall into the warrant exception designed to protect officers (by permitting searches for weapons) or the exception to avoid destruction of evidence (such as flushing drugs). SCOTUS rejected these arguments, reasoning that phones can be checked externally, without accessing any data, to verify that they are not weapons, and that use of a Faraday bag or removal of the battery can prevent remotely wiping a phone. (As others like Noah Feldman have mentioned, it’s time to invest in Faraday bags.) The government argued that cell phones should be treated like wallets or purses. Chief Justice Roberts rejected the comparison, writing, “That is like saying a ride on horseback is not materially indistinguishable from a flight to the moon.”
As SCOTUS acknowledged, this recognition of the Fourth Amendment will make law enforcement more difficult. Roberts wrote: “We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.”
However, phones can still be searched. If officers can articulate probable cause to search a phone, they can seek a warrant and search it. Roberts wrote, “[T]he Court’s holding is not that the information on a cellphone is immune from search; it is that a warrant is generally required before a search.”
The great Jeffrey Fisher (who successfully re-invigorated the Confrontation Clause by arguing Crawford and Melendez-Diaz) has worked his magic again. Here is the link to video of Fisher and California Solicitor General Ed DuMont (who argued the cases against Fisher) outlining their arguments.
“Remember, the Fourth Amendment says that the police and government agents cannot engage in any unreasonable searches, and expresses a preference for obtaining warrants before engaging in any search,” Fisher said. “Mr. Riley argued that the search of his cellphone, therefore, was unreasonable because it unduly invaded his privacy without obtaining a warrant.” Fisher’s argument prevailed in today’s SCOTUS decision.
How do I join the Jeffrey Fisher fan club? I want a bobblehead doll.
Some of today’s coverage of Riley is here:
I’ve been thinking about this error rate question a great deal since attending the Innocence Network conference in Portland, Oregon a few weeks ago (April 11th and 12th).
As a trial level public defender, one constant challenge is seeking to dispel misperceptions of jurors about the accuracy and reliability of the criminal trial process. Many jurors walk into the courtroom with beliefs that the police usually arrest the right person, the prosecutor will be able to prove the charges, police officers who testify will be truthful and accurate, and evidence introduced by “forensic science experts” is the result of rigorous, reliable scientific method. Of course, prosecutors and judges, who participate in the plea negotations that resolve most cases, share many of these sentiments (interesting recent discussion of judges’ bias toward believing cops is here and here).
But how true are these beliefs? Far too often, not very true. How well is the machinery of the criminal justice system working to produce accurate results? How often are people convicted of crimes that they did not commit?
Wrongful conviction errors come in two main categories: innocent people who plead guilty (this happens a lot, as discussed here), and innocent people who go to trial and are [falsely] convicted. Some of the people who have been falsely convicted have been subsequently exonerated. The exoneration cases are irrefutable evidence of errors in the criminal justice system. The systemic causes of error are being studied in order to advocate for reforms that will reduce this error rate.
How widespread are these errors? One speaker at the Innocence Network conference spoke of false conviction rate estimations ranging between 2% and 20% of criminal convictions, from a variety of studies using a variety of methodologies. This is a very important number to try to pin down with further study.
On April 28th, a study was published in the prestigious Proceedings of the National Academy of Sciences concluding that the error rate in death penalty cases is 4.1% (“The Rate of False Conviction of Criminal Defendants Who are Sentenced to Death” published 4/28/14). Samuel Gross, one author of the study, explained the significance of this number: “Since 1973, nearly 8,500 defendants have been sentenced to death in the United States, and 138 of them have been exonerated. Our study means that more than 200 additional innocent defendants have been sentenced to death in that period.” Many innocent people remain on death row. (See discussion here.)
One day after the death penalty error rate study was published, the botched execution of Clayton Lockett in Oklahoma on April 29th
reignited debate on the death penalty and focused attention on the fact that 3% of executions are botched, most often using lethal injection. The botched execution in Oklahoma followed a politicized process that had bullied the state supreme court and shielded secret execution processes from scrutiny. Oklahoma Governor Mary Fallin, who prevented scrutiny and delay prior to the execution, is now calling for an independent review of execution procedures. The Oklahoma execution was shocking, inhumane and cruel. (Coverage here
It is fascinating to speak with jurors about how the presumption of innocence and the requirement of proof beyond a reasonable doubt are intended to reduce the number of wrongful convictions. I often ask jurors what they think of Blackstone’s principle: “It is better that ten guilty persons escape than that one innocent suffer.” When I ask jurors if they believe false convictions occur, some are openly skeptical. It does happen, more often than many people would like to admit.
As the events of this week have highlighted, there is an error rate in the criminal justice system. It is significant and irrefutable, and it can be reduced. Acknowledgement and study of these errors will propel reform and improve accuracy in the criminal justice system.
On Halloween weekend 2011, I heard Justices Breyer and Souter speak at a luncheon. Souter spoke about his resistance to technology. He described using pen and paper to draft opinions and recounted how a person had recently shown him an iPad set up to replay a Court argument. When Souter was done listening, he didn’t know how to turn it off, so he just stuck the thing, still talking, in a closet and closed the door.
Souter is no longer on the Court, but this is a tiny window into the technological savvy of the folks who will decide whether warrantless searches of cell phones are constitutional. It has been observed that some of the justices are more tech savvy than others. As Stephen Wermiel wrote here, “The Court is sometimes befuddled by what to make of different forms of technology, either as to how devices actually work or as to how to fit technology into particular legal doctrines, or both.” I wonder if the justices are among the 91% of Americans who own a cell phone. Do they email and text via phone, or receive electronic correspondence from doctors or banks? How deeply do they grasp how much private information flows through these devices?
For the first time, based on the arguments made today, SCOTUS will evaluate whether the 4th Amendment prohibits warrantless searches of cell phones incident to arrest. Two cases are before the Court. In the California case, Riley, the prior court said warrantless search incident to arrest was permissible. In the Massachusetts case, Wurie, the First Circuit said a warrant was required. (More background is included in my prior posts on this topic.)
The best summary of the facts of the California case is here in Amy Howe’s plain English summary, which relies brilliantly on the writing style of a well known children’s book:
“It was a series of events straight out of the children’s book If You Give a Mouse a Cookie – the Law and Order edition. The storyline goes something like this: If you are driving a car with expired tags, the police might pull you over. If they do, they will ask to see your driver’s license. When you give it to them, they will run a computer check and learn that it has been suspended. So they decide to impound the car. But before they tow the car away, they search it. When they search it, they discover two handguns under the hood, so they arrest you. When they arrest you, they take your smart phone. When they take your smart phone, they read your text messages. When they read the messages, they see texts which suggest that you might be a member of a local gang. Based in part on those texts, they suspect that you may have been involved in a gang-related shooting a couple of weeks ago, and so they look at your phone again, where they find more evidence to support the theory that you belong to a gang and were involved in the shooting.”
“At your trial, you ask the judge to bar the prosecutors from introducing the evidence obtained from your phone. But the judge rejects that request, ruling that the police could search your phone as part of the process of arresting you – a rule known as a “search incident to arrest.” So the evidence from your phone comes in at your trial, and – even though none of the four eyewitnesses that the prosecutors call can identify you as one of the shooters – you are convicted of attempted murder and assault with a semi-automatic firearm. And because of the evidence linking you to a gang, the seven-year sentence that you would have gotten is increased to fifteen years to life.”
In arguing to justify warrantless searches, the government asserts that phones should be subject to search incident to arrest because phones are “particularly likely to contain evidence of wrongdoing” and can be remotely wiped clean. Riley and Wurie counter that a seized phone can be held securely in a faraday bag (fun new word: “faraday bag”) that would prevent wireless communications unless and until a warrant is secured.
Think about the texts, emails, photos, contacts and calendar in your phone. While most of us don’t have a phone filled with “evidence of wrongdoing,” we have abundant personal information stockpiled there. The ability to rummage around in photos, calendars and contacts to investigate and see if anything incriminating turns up is exactly what police want. It is what police routinely do in California under the current state of the law. However, it is also precisely what the Fourth Amendment prohibits. Hopefully SCOTUS will adopt a bright line prohibition on warrantless cell phone searches.
This blog is on a very brief break (to complete a book re-write). Expect a post in March and book announcements in late 2014.