Vol. 11, No. 23	Covering Cases Published in the Advance Sheets through June 7, 2004

Final Supreme Court Decisions From the Current Term

• Much as it did with its decision in Apprendi v. New Jersey, the Supreme Court lobbed a sentencing bombshell in the Blakely case - and then quickly left town for the summer before anyone had time to assess the damage. By a 5-to-4 vote, an unusual (and sharply divided) alignment of Justices held that the Sixth Amendment requires a jury determination of the factual basis for upward departures - a principle that threatens some of the major premises of the Federal Sentencing Guidelines.
  
  
• In Hamdi, the Supreme Court held, by a vote of 8-to-1, that U.S. citizens detained as “enemy combatants” on U.S. soil “unquestionably” have the right to counsel and to fair process so they can challenge that designation and their continued detention.
  
  
• In Rasul, the Supreme Court held, by a vote of 6-to-3, that the foreign nationals held at the Guantanamo Bay Naval Base in Cuba have the right to file habeas corpus petitions in the federal courts to challenge the legality of their detention and the conditions at the base - and that their “indefinite detention for the purpose of interrogation is not authorized.”
  
  
• In Padilla, the Supreme Court declined reach the merits of the case that was universally regarded as the strongest of the various detention cases. Instead, by a vote of 5-to-4, the majority dismissed Jose Padilla’s habeas action, on the ground that he had failed to name the proper respondent - namely the Commander of the Naval brig where he is being held.
  
  
• In Seibert, a plurality of the Supreme Court held that Miranda warnings delivered “midstream,” i.e., after the defendant was deliberately subjected to a first interrogation without any such warnings, were unacceptable as a police tactic designed to defeat the protections of Miranda, and the use of that tactic required suppression of the statements made at the second, warned interrogation.
  
  
• In Patane, a plurality of the Supreme Court concluded that the failure to give a proper Miranda warning to a suspect does not require the suppression of physical evidence obtained as a result of the inadmissible - though not coerced - questioning.
  
  
• The ACLU decision is a continuation of a longstanding battle over what steps Congress may take to restrict minors’ access to adult material on the Internet without running afoul of the First Amendment; and, in this case, the Court effectively continued in effect a lower court ban on the enforcement of the Child Online Protection Act (COPA), which was enacted in 1998 but has never yet become effective.
  
  
• In the Alvarez-Machain case, the Court reversed a Ninth Circuit decision that allowed a Mexican doctor to use the Alien Tort Statute to collect damages from a Mexican national who helped the DEA kidnap him in Mexico and bring him to the U.S. for trial, but the Court also refused to accept the Government’s sweeping position that the U.S. courts may not be used to remedy any violations of international law.

   

Notice to Subscribers: Our next issue of P&J will be posted in two weeks.

Blakely v. Washington, No. 02-1632 (2004 U.S. LEXIS 4573, June 24, 2004) (Justice Scalia)

Relying on its decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), a bitterly divided Supreme Court invalidated the criminal sentencing system in the State of Washington in a ruling that also casts serious doubts on nearly identical sentencing systems in a dozen other states, and raises serious questions about the constitutional validity of major components of the Federal Sentencing Guidelines.

Ralph Blakely pled guilty to kidnapping his estranged wife. The facts he admitted supported a sentence of no more than 53 months. But the judge in his case used his authority under state guidelines to impose a sentence of 90 months, after making a factual finding – one never put before a jury – that the kidnapping was committed with “deliberate cruelty.” Blakely objected; but his objection was overruled and the sentence was ultimately affirmed by the Washington state courts.

On appeal to the Supreme Court, a rather strange alliance of Justices (Scalia, Stevens, Souter, Thomas and Ginsburg) joined to hold that the sentence enhancement was invalid under Apprendi because the facts supporting the enhancement were “neither admitted by the petitioner nor found by the jury.” Writing for the majority, Justice Scalia explained: “The judge in this case could not have imposed the exceptional 90-month sentence solely on the basis of the facts admitted in the guilty plea. . . . It remains the case that the jury's verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact." He also wrote that, under Apprendi, “every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.“ (Emphasis in original.)

The State contended that the 90-month sentence did not violate Apprendi because it was still below the 10-year maximum for felonies in the same category. But Justice Scalia rejected that argument, stating:

“Our precedents make clear, however, that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. . . . In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ and the judge exceeds his proper authority.” (Internal citations omitted)

If there was any doubt about the scope of that ruling, Justice Breyer, in one dissent, emphasized that the ruling means that “a jury must find, not only the facts that make up the crime of which the offender is charged, but also all (punishment-increasing) facts about the way in which the offender carried out that crime.”

Justice Scalia cautioned that “the Federal Guidelines are not before us, and we express no opinion on them.” However, not only did the dissenting Justices (O’Connor, Rehnquist, Kennedy and Breyer) predict that the ruling threatened the Federal Guidelines, other Federal judges almost immediately began to conclude that Blakely had "potentially cataclysmic implications" on Federal sentencing practices.

That specific comment was made by Judge Cassell, in U.S. v. Croxford, No. 2:02-CR-00302PGC (D. Utah June 29, 2004), where he concluded that “the inescapable conclusion of Blakely is that the federal sentencing guidelines have been rendered unconstitutional in cases such as this one.”

A similar view was expressed by Judge Goodwin of the S.D.W.Va. in U.S. v. Shamblin, Crim. No. 2:03-00217 (S.D.W.Va. June 30, 2004), where he concluded that a defendant involved in significant drug operation - who would have received a life sentence before Apprendi, and 20 years before Blakely - could only now be sentenced to a term of 12 months.

Clearly, Blakely set off major shock waves throughout the country; and the consensus among criminal defense attorneys seems to be that Blakely will have a profound impact on the Federal sentencing system. In an effort to assist the ongoing analysis of Blakely, we have set up a special Blakely resource center on our Web site, where we will attempt to post significant new developments as they occur. We encourage our readers to notify us of additional items of interest on this topic.

Hamdi v. Rumsfeld, No. 03-6696 (U.S. Sup. Ct. 06/28/2004) (Justice O’Connor)

There were, essentially, two issues before the Supreme Court in this case: (a) the legality of the Government’s detention of Yaser Esam Hamdi, an American citizen, on United States soil as an “enemy combatant,” and (b) the rights of, and the process that is constitutionally owed to, such a person who seeks to challenge his classification as an “enemy combatant.”

Hamdi has been imprisoned without charge or hearing at a U.S. Navy Brig in Charleston, S.C. for more than two years, on the allegation that he was an “enemy combatant” who bore arms against his country for the Taliban in Afghanistan. District Judge Doumar appropriately described Hamdi’s plight as the “first in American jurisprudence where an American citizen has been held incommunicado and subjected to an indefinite detention in the continental United States without charges, without any finding by a military tribunal, and without access to a lawyer.” (Hamdi v. Rumsfeld, 243 F.Supp.2d 527 (E.D.Va. 2003)).

Ever since Hamdi was imprisoned, Frank Dunham, the Federal Public Defender from Virginia, has been valiantly seeking to challenge his detention, but his efforts have been generally thwarted by the ultra-conservative Fourth Circuit. (See, Hamdi v. Rumsfeld, 337 F.3d 335 (4th Cir. July 9, 2003) (en banc) and 316 F.3d 450 (4th Cir. 2003)). Even worse, the Administration has frequently made the hyperbolic claim that challenging Hamdi’s incarceration is unpatriotic, possibly treasonous, and certainly a severe threat to the safety and security of America.

Eight of the Justices agreed that the two-year-long detention of Hamdi had either been invalid from the beginning or had become so, for constitutional or statutory reasons. Thus, the case was remanded back to a thoroughly chastened Fourth Circuit for further proceedings consistent with the Court’s rulings.

The controlling plurality opinion was written by Justice O’Connor and joined by Justices Rehnquist, Kennedy and Breyer. Justice O’Connor concluded that a Congressional resolution authorizing military force permitted the detention of a “narrow” category of persons - i.e., those who are “part of or supporting forces hostile to the United States or coalition partners” in Afghanistan and who “engaged in an armed conflict against the United States there.” But, she also emphasized that the detention must be "to prevent a combatant's return to the battlefield," which means not until the end of the "war on terror" (which she noted may not come in Hamdi's lifetime), but instead only until the end of the "active combat operations in Afghanistan."

The critical aspect of her decision was her statement: "Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized." She also emphatically stated that Hamdi “unquestionably has the right to access to counsel”; and that, as a citizen being held as an enemy combatant, he was entitled to “notice of the factual basis of his classification” and a “fair opportunity to rebut the government’s factual assertions before a neutral decision-maker.”

Four of the Justices (Scalia, Stevens, Souter and Ginsburg) concluded that Hamdi’s detention itself was unlawful; and, Justice Scalia wrote a surprisingly forceful dissent in which he argued:

“Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution’s Suspension Clause, Art. I, § 9, cl. 2, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge. No one contends that the congressional Authorization for Use of Military Force, on which the Government relies to justify its actions here, is an implementation of the Suspension Clause. Accordingly, I would reverse the decision below.

“The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”

The lone dissenter was Justice Thomas, who concluded that Hamdi’s detention “falls squarely within the Federal Government’s war powers, and we lack the expertise and capacity to second-guess that decision. As such, petitioners’ habeas challenge should fail, and there is no reason to remand the case.” Wow!!

In addition to the many resources relating to this case which have been posted on the Anti-Terrorism section of our own Web site, the law firm of Jenner & Block has posted more than a dozen of the many amicus briefs that were filed in this important case, all of which can be accessed by clicking here.

Rasul v. Bush, No. 03-334 (U.S. Sup. Ct. 06/28/2004) (Justice Stevens)

The narrow but important issue before the Supreme Court in these two consolidated cases was whether United States courts lack jurisdiction to consider challenges to the legality of the detention of the 600-plus foreign nationals captured abroad in connection with hostilities and imprisoned at the Guantanamo Bay Naval Base, Cuba, incommunicado, indeterminately, and without charges or access to counsel.

By a 6-to-3 vote, the Court held that the district courts do have the jurisdiction, under 28 U.S.C. § 2241, to hear such cases, and that the courts’ jurisdiction extends to aliens held in a territory over which the United States exercises plenary and exclusive jurisdiction, but not “ultimate sovereignty.”

The majority thus rejected the Government’s claim that, under Johnson v. Eisentrager, 339 U.S. 763 (1950), the Federal court have no jurisdiction to hear these cases because the Guantanamo Naval Base is outside the sovereign territory of the United States. The majority concluded that Eisentrager did not govern this case, for a variety of reasons, including the fact that the United States “exercises exclusive jurisdiction and control” over the Guantanamo Base under a 101-year-old-lease.

The essence of the majority’s ruling was that “Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.” (Quoting from Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206, 218—219 (1953)).

Justices Scalia, Rehnquist and Thomas dissented. In a lengthy opinion written by Justice Scalia, the dissenters openly castigated the majority’s holding as “boldly extend[ing] the scope of the habeas statute to the four corners of the earth,” with “breathtaking” consequences - viz., the opening of U.S. courts to foreign combatants. They also complained that the decision gave enemy combatants “greater rights than domestic detainees” since they could now file habeas petitions “in any of the 94 federal judicial districts. . . . For this Court to create such a monstrous scheme in time of war, and in frustration of our military commanders’ reliance upon clearly stated prior law, is judicial adventurism of the worst sort.”

Once again, all of the briefs filed in this case can be accessed at http://www.jenner.com/gitmo/.

Rumsfeld v. Padilla, No. 03-1027 (U.S. Sup. Ct. 06/28/2004) (Justice Rehnquist)

Perhaps the most surprising of the three detainee cases decided by the Court last week was its decision in the case of Jose Padilla. Padilla is an American citizen who was first arrested on American soil on a material witness warrant. Then, almost as soon as counsel appeared on his behalf, he was scooted away in the middle of the night to the U.S. Navy Brig in Charleston, S.C., where he has been held incommunicado, without charges, and without access to counsel or the courts. Thus, in many ways, it was the case with the clearest violations of constitutional rights.

Despite the strength of the issues before the Court in this case, a 5-to-4 majority declined even to reach the merits of Padilla’s case. Instead, relying on what it described as its “longstanding practice” and “default rule” that the proper respondent in a habeas action challenging physical confinement is the warden of the facility where the prisoner is being held, the majority dismissed Padilla’s habeas petition without prejudice. It said that it should have been filed in the District of South Carolina rather than the S.D.N.Y. The majority also stressed that its default rule was necessary to prevent, inter alia, “rampant forum shopping.”

(It should be noted that Padilla was first assigned counsel when he was brought to New York as a material witness pursuant to 18 U.S.C. § 3144. Padilla’s attorney, Donna R. Newman of New York, quickly moved to dismiss the material witness warrant against him. Two days after she submitted that motion, the Government advised the court, ex parte, that it was withdrawing its subpoena; that the President had designated Padilla as an enemy combatant; and that Padilla was being transferred to South Carolina.)

Four Justices (Stevens, Souter, Ginsburg and Breyer) dissented and joined in an impassioned opinion written by Justice Stevens. He described the “bright-line” rule relied upon the majority as “riddled” with exceptions; and he argued that the Court has always “favored a more functional approach that focuses on the person with the power to produce the body” – here, Secretary of Defense Donald Rumsfeld, who was properly served in the Southern District of New York.

Then, turning to the merits of Padilla’s claims, Justice Stevens argued that Padilla’s detention itself was illegal. He wrote that "the Non-Detention Act, 18 U. S. C. 4001(a), prohibits - and the Authorization for Use of Military Force Joint Resolution, 115 Stat. 224, adopted on September 18, 2001, does not authorize - the protracted, incommunicado detention of American citizens arrested in the United States." He then continued:

“At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people’s rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.

“Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.”

Missouri v. Seibert, No. 02-1371 (U.S. Sup. Ct. 06/28/2004) (Justice Souter)

Ever since the Supreme Court established, in Miranda v. Arizona, 384 U.S. 436 (1966), that suspects are entitled to certain warnings before they may be interrogated, law enforcement officials have attempted to find ways around that rule. In 2000, the Court rejected a major assault on Miranda’s rule when it held that Miranda established a rule of “constitutional dimension” that could not be abrogated by an Act of Congress. (Dickerson v. U.S., 530 U.S. 428 (2000)).

Although many commentators thought that Dickerson would end the attacks on Miranda, it appears from a number of recent cases that Dickerson has in fact energized the anti-Miranda forces to switch from an all-out frontal assault to a piecemeal guerrilla attack. The instant case is an example of that approach.

Patrice Seibert was convicted of second-degree murder and sentenced to life in prison for her role in the death of Donald Rector, a mentally ill 18-year old boy who had been living in Seibert’s mobile home with the rest of her family. According to prosecutors, Seibert feared that charges of neglect would be filed against her when one of her own sons, who had cerebral palsy, died in his sleep. Accordingly, she helped two other sons set fire to the mobile home to cover up that death. Rector was left to die in the mobile home in order to avoid the appearance that Seibert’s deceased son had been left unattended at the time of his death.

When Seibert was brought in for questioning, the police deliberately questioned her for 20 minutes without giving her any Miranda warnings. During that initial interrogation, Seibert admitted that she knew that Rector was supposed to die in the fire. After that admission, Seibert was given a 20 minute break from the interrogation; and, when it was resumed, the officer advised Seibert of her Miranda rights, which she waived. Seibert then repeated the incriminating statements she had made prior to receiving a Miranda warning.

The Missouri trial court allowed the tape of Seibert’s second, warned confession to be used at trial, relying in large part on the Supreme Court’s ruling in Oregon v. Elstad, 470 U.S. 298 (1985). (In Elstad, the Court held that the initial failure to give a Miranda warning did not negate a voluntary confession made after the warning was finally given.)

The Missouri supreme court ultimately reversed. It distinguished the instant case from Elstad, holding that because the officer intentionally did not administer a Miranda warning to Seibert, her second warned confession was involuntary and therefore should have been suppressed.

The Supreme Court granted certiorari in order to resolve a Circuit split on the question of whether a “deliberate ‘end run’ around Miranda” provided cause for the suppression of a second, warned confession.

In responding to that issue, Justice Souter, writing for a plurality of himself and Justices Stevens, Ginsburg and Breyer, stated that this police tactic “shows the temptations for abuse inherent in the two-step technique.” He emphasized that this “midstream” questioning technique “of interrogating in successive, unwarned and warned phases raises a new challenge to Miranda. Although we have no statistics on the frequency of this practice, it is not confined to Rolla, Missouri. [It is] promoted . . . by a national police training organization” and other police departments across the country. He then emphatically stated that

“strategists dedicated to draining the substance out of Miranda cannot accomplish by training instructions what Dickerson held Congress could not do by statute.”

For those reasons, the plurality held that statements made in two-step interrogations of the type at issue in this case “by any objective measure reveal a police strategy adapted to undermine the Miranda warnings” and they are not admissible under Miranda. The test adopted by the plurality was whether the intervening Miranda warnings, when considered in conjunction with the investigator's prewarning questions and the admissions already made by the defendant, are effective at advising a suspect about her postwarning rights.

In applying that test, the plurality implicitly focused on the suspect's point of view and emphasized several of the most egregious facts here: the interrogation took place in a station house; the questioning was "systematic, exhaustive, and managed with psychological skill"; the prewarning interrogation caused the suspect to almost completely incriminate herself; and the interrogating officer did nothing to correct the suspect's likely misimpression that her prewarning statements would be used against her. Those facts also distinguished the instant case from Elstad, which the plurality characterized as a case involving "a good-faith Miranda mistake" - as opposed to the deliberate

Justice Kennedy concurred in the result, but he proposed adopting “a narrower test.” He wrote: “The admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed. If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspect's situation would understand the import and effect of the Miranda warning and of the Miranda waiver."

In a dissenting opinion, Justice O’Connor said that the plurality’s decision “devours Oregon v. Elstad,” a precedent she described a requiring the opposite result. She argued that the subjective intent of the police officers should make no difference, because a suspect could not know what was in an officer’s mind.

Rather, she said, the test should be the voluntariness of the second statements. If the statements were voluntary, they should be admitted, she said, while if involuntary, they should be kept out of court even if the Miranda warnings were given. Justices Rehnquist, Scalia and Thomas joined in her dissent.

Copyright © 2004 Punch and Jurists, Ltd.