Vol. 11, No. 22	Covering Cases Published in the Advance Sheets through May 31, 2004

Supreme Court

• In Hiibel, the Supreme Court upheld a Nevada law that makes it a criminal offense for anyone suspected of wrongdoing to refuse to identify himself to the police. In this 5-to-4 decision, the majority held that neither the Fourth Amendment’s right to privacy nor the Fifth Amendment’s guarantee against self-incrimination bars states from passing laws requiring citizens to identify themselves to the police.
  
  
• Ford is one of those almost pointless habeas decisions that does little more than show the current Court’s open disdain for the once Great Writ. Here, the Supreme Court held that the Ninth Circuit had erred by holding that the district court’s failure to give the pro se petitioner two warnings deprived him of a “fair and informed opportunity . . . to have his claims considered on the merits.” Writing for a 7-to-2 majority, Justice Thomas ducked most of the significant issues, but he strongly chided the Circuit court that “district judges have no obligation to act as counsel or paralegal to pro se litigants.”
  

Brady Violations Excused Because the Evidence Ultimately Proved to be "Self-Validating"

• In Mataya, Judge Posner of the Seventh Circuit held that a series of Brady violations were not material because, despite the fact that the government failed to turn over information that its main witness got a deal saving him years in prison and sat-by while he offered perjured testimony on this fact, the defendant suffered no prejudice since the witness' obvious incentive to lie did not alter the fact that the testimony he offered proved to be “self-validating,” and he could only have learned the details of the facts as testified to through a confession of the perpetrator.
  

The Federal Sentencing Guidelines: Unconstitutional, Unwise and Unjust

• In an impassioned, 174-page decision in the Green case, Judge William Young of the D.Mass. blasted the Federal sentencing system as both unconstitutional and unjust because it gives prosecutors too much power to reward those who plead guilty and to punish those who go to trial and lose with exceptionally harsh prison sentences
  

Feeney Amendment II ???

The powerful Chairman of the House Committee on the Judiciary, Congressman James F. Sensenbrenner, Jr. (R.Wisc.), is mounting another stealth attack on what remains of judicial discretion under the Federal Sentencing Guidelines. He has proposed a new law, H.R. 4547, which is euphemistically entitled "Defending America's Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2004." Masquerading as a law that champions drug treatment while protecting children, H.R. 4547 is just another surreptitious attempt to shift power from judges and the federal sentencing commission to federal prosecutors while implementing even harsher mandatory minimum sentences for drug crimes: this time, for the distribution of drugs (including marijuana) to minors. You can read the full text of that bill by going to the Thomas legislative Website and then typing in "H.R. 4547" in the Bill Number search box. Once you do, we hope you will register your strong opposition with your elected representatives in Congress.

Hiibel v. Sixth Judicial Dist. Ct. of Nevada, No. 03-5554 (U.S. Sup. Ct. 06/21/2004) (Justice Kennedy)

Larry “Dudley” Hiibel, a Nevada cattle rancher and a person dubbed by the Nevada courts as a “dedicated libertarian,” was prosecuted under a Nevada law for refusing to reveal his name or show an ID during an encounter with the police on a rural road in 2000. The police officer had responded to a telephone report of a man hitting a woman in the cab of a parked truck. When the police arrived, they found Hiibel standing outside the truck, and a young woman, who turned out to be his daughter, sitting inside the truck.

Eleven times, the deputy asked Hiibel for identification; and eleven times he refused to provide it - as a matter of principle. He kept repeating that he had broken no laws and was not required to give his name. Eventually, Hiibel was arrested and charged with a misdemeanor offense of refusing to identify himself under a Nevada statute that requires anyone suspected of wrongdoing to identify himself to the police. He was convicted and fined $250; and the Nevada Supreme Court upheld his conviction.

Hiibel appealed to the Supreme Court, arguing principally that the law in question violated both his rights of privacy under the Fourth Amendment and his Fifth Amendment privilege against compelled self-incrimination. Surprisingly, the Supreme Court had never previously addressed whether such forced identification laws are constitutional - although, prior to this decision, 21 states had similar laws on their books (a number that we assume will now quickly increase).

Because the case pitted privacy advocates against a growing clamor for a national identity card, it attracted enormous attention; and a large number of amicus curiae briefs were submitted on both sides of the issue, including briefs from the American Civil Liberties Union, the Cato Institute, and PrivacyActivism, a non-profit organization “dedicated to informing and empowering individuals about their privacy rights on the Internet” - copies of which can be accessed by clicking on each of those links.

In a 5-4 decision, the majority rejected both constitutional arguments - at least as they applied to the facts of this case. Writing for the majority, Justice Kennedy concluded that the demand to identify oneself is a logical corollary to a valid Terry stop (Terry v. Ohio, 392 U.S. 1 (1968)), which held that the police have the right to briefly detain, question and conduct a pat-down search of a person whose behavior has given rise to a “reasonable suspicion” that criminal activity may be afoot. He wrote: “Obtaining a suspect’s name in the course of a Terry stop serves important government interests. The request for identity has an immediate relation to the purpose, rationale and practical demands of a Terry stop.”

Three of the dissenting Justices (Breyer, Souter and Ginsburg) put up a moderate fight on the Fourth Amendment issue, principally on the grounds that the Court had previously stated (albeit in dicta) that the state could not compel an individual detained in a Terry stop to identify himself. Judge Stevens dissented only on Fifth Amendment grounds.

The most interesting debate in this case had to do with the Fifth Amendment’s privilege against self-incrimination. The majority concluded that “answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances.” It also stressed that Hiibel himself had no “articulated real and appreciable fear that his name would be used to incriminate him, of that it ‘would furnish a link in the chain of evidence needed to prosecute’ him.”

Nevertheless, the majority did acknowledge that “a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense. In that case, the court can then consider whether the privilege applies, and, if the Fifth Amendment has been violated, what remedy must follow. We need not resolve those questions here.”

Justice Stevens countered that the Fifth Amendment protection against self-incrimination must always shield a criminal suspect who is being questioned by the police. He wrote: “The [majority] reasons that we should not assume that the disclosure of petitioner’s name would be used to incriminate him or that it would furnish a link in a chain of evidence needed to prosecute him. But why else would an officer ask for it?” He then continued:

“A person’s identity obviously bears informational and incriminating worth, ‘even if the [name] itself is not inculpatory.’ A name can provide the key to a broad array of information about the person, particularly in the hands of a police officer with access to a range of law enforcement databases. And that information, in turn, can be tremendously useful in a criminal prosecution. It is therefore quite wrong to suggest that a person’s identity provides a link in the chain to incriminating evidence ‘only in unusual circumstances’.”

Clearly, this decision raises almost as many questions as it answers. For example, among the many Fourth Amendment issues left open by this decision are two in particular: (1) May the police stop someone without any suspicion, but just based on an articulable hunch, or a random stop policy, to demand identification? and (2) May the police require the person to present some written identification?

Among the Fifth Amendment issues left open are: (1) What are the special circumstances that could cause the Fifth Amendment privilege to be implicated: and (2) How would such a case be litigated? If the police stop a suspect, ask his name, and he takes the Fifth, do the police still have the right to arrest him on the theory that he violated the compelled identification statute?

Clearly, this will not be the Court’s last statement on the issue of the compelled identification statutes.

U.S. v. Green, Crim. No. 02-10054-WGY (D.Mass. 06/18/2004) (Judge Young)

In the context of appeals from two sentences that he had previously imposed, Judge Young wrote this impassioned and powerful 174-page decision in which he concluded that the Federal Sentencing Guidelines are unconstitutional because they give prosecutors too much power. In a broad indictment of almost every aspect of the Federal sentencing system, he concluded that sentences are really established by the Department of Justice (DOJ) - and that judges merely impose them. He wrote that the DOJ has become

“so addicted to plea bargaining to leverage its law enforcement resources to an overwhelming conviction rate that the focus of our entire criminal justice system has shifted away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused citizen. . . .

Against the centrally organized efforts of the [DOJ] to manipulate sentences and sentencing policy to achieve the perceived goals of law enforcement, the efforts of individual judges to control the whirlwind have been but a weak reed -- unnoticed, derided, and largely rejected. As a result, the Sixth Amendment guarantee of trial by jury has been eroded as never before in the history of our nation, while the institutional judiciary complacently slips into forms of expression and modes of thought that unconsciously reinforce the [DOJ] agenda in a powerfully Orwellian way."

Previously Judge Young had sentenced Richard Green to 20 years in prison; and he had sentenced William Olivero to four years in prison. On reconsideration, he concluded that both sentences were too long. Green’s sentence was wrong because it resulted from “Unconstitutionally Piling on Unproven Conduct”; and Olivero’s sentence was wrong because it resulted from “Starkly Illegal Fact Bargaining.”

In his unstinting attack on the Federal sentencing system, Judge Young left nothing unchallenged. He reviewed a litany of the methods used by the prosecutors to wrest total control of the sentencing system from the judges and he blasted the judiciary for its obsequious acquiescence to those strong-willed tactics. He condemned the judiciary for using sophistry rather than straight talk to excuse or “wink at” those patently improper - and sometimes illegal - tactics.

A major portion of his decision was devoted to a forceful assault on the Feeney Amendment - from its unsupported premises to the underhanded and secretive manner in which it was passed by Congress. Judge Young made clear his view that Congress had totally abdicated its legislative duty by ceding all responsibility for the bill to a few legislators bent on creating a “mandatory minimum sentencing system.”

No summary of this provocative decision would do it justice: it is, simply, an important, must-read decision.

In Brief

Additional Decisions from the Supreme Court to be reviewed in greater detail in a later issue of P&J:

Blakely v. Washington, No. 02-1632 (2004 U.S. LEXIS 4573, June 24, 2004) - In a decision of profound significance, a sharply divided Supreme Court invalidated the criminal sentencing system used by the State of Washington. Building on the essential premise of Apprendi v. New Jersey, 530 U.S. 466 (2000), a 5-to-4 majority held that only juries - and not judges - may increase criminal sentences beyond the maximums suggested by the statutory guidelines. Writing for the majority, Justice Scalia stated: “When a judge inflicts a punishment that the jury’s verdict does not allow . . . the judge exceeds his proper authority.”

While the Court did not specifically address the Federal Sentencing Guidelines, several of the dissenting Justices argued that the scope of the ruling is so broad that it casts significant doubt on the constitutionality of some of the essential provisions of the Federal Guidelines. For example, Justice O’Connor wrote: “Over 20 years of sentencing reform are all but lost; and tens of thousands of criminal judgments are in jeopardy.” She added: “All criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack.”

Clearly, the scope and impact of this 5-to-4 landmark decision needs a far more detailed analysis than either time or space permit this week. Thus, while we defer until next week our own discussion of this ruling, we refer you in the meanwhile to the preliminary analysis of this case by Mary Price, General Counsel of FAMM, which is available online by clicking here.

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Parole Searches: U.S. v. Crawford, No. 01-50633 (9th Cir. 06/21/2004) (En banc) - Reversing a panel’s prior decision (reported at 323 F.3d 700 (9th Cir. 2003)), the Ninth Circuit, sitting en banc, held, by a vote of 8-to-3, that a suspicionless and warrantless search of the defendant’s residence for evidence of a pre-parole crime did not violate the Fourth Amendment, even though there was no condition of parole that authorized such searches.

Prisoners’ Rights - Placement in a Supermax: Austin v. Wilkinson, No. 02-3429 (6th Cir. 06/10/2004) - In an important and potentially far-reaching decision, a divided panel from the 6th Circuit ruled that prisoners cannot be placed or indefinitely detained in solitary confinement at an Ohio supermax prison without due process. The district court (Judge Gwin of the N.D.Ohio) had earlier concluded that a surplus of high-maximum-security cells led to a “because we have built it, they will come” mentality, with that surplus leading to the placement of inmates in the supermax who did not meet the high-maximum-security requirements, contrary to both corrections policy and constitutional norms. The Sixth Circuit agreed that the procedures used by the prison officials implicated state-created liberty interests and concluded they violated the principles laid down in Sandin v. Conner, 515 U.S. 472 (1995). Thus, it affirmed the district court’s injunction against the continued use of those procedures - a ruling that will affect some 400 prisoners in Ohio and could affect thousand of inmates across the country.

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