February 2003

The U.S. Supreme Court and Criminal Law: 2001 Term 
(Part Two)

by Craig Hemmens

This is the second article in a two-part series. Following is a summary of significant criminal-justice-related decisions of the 2001 term, arranged alphabetically by subject matter. The case history, rationale of the Court, and vote totals are included.

[click here for part one]

Mickens v. Taylor, 70 USLW 4216 (2002)

Mickens was convicted of first-degree murder for the killing of Timothy Hall, and sentenced to death. In his habeas petition, Mickens argued that he was denied effective assistance of counsel, in violation of the Sixth Amendment. The basis for this claim was his discovery, after trial, that his attorney had represented Hall, the victim in Mickens' murder case, on unrelated charges pending at the time of the murder. The attorney did not reveal to Mickens that he had previously represented the victim. This representation of Mickens' murder victim created, Mickens argued, a conflict of interest. In addition, the trial judge was aware of the situation but did nothing. The district court and the en banc 4th Circuit Court of Appeals both denied relief on the ground that Mickens had not established any actual adverse effect as a result of the dual representation.

The Supreme Court, per Justice Scalia, narrowly upheld the lower courts, holding that a defendant who claims his right to counsel has been violated by a conflict of interest must show the conflict actually had a negative effect on the attorney's representation. The Court noted that the rule in Strickland v. Washington (1984) is that a defendant alleging a Sixth Amendment violation must show a "reasonable probability" that the result would have been different. Here, the high court reasoned that a conflict of interest sufficient to warrant a trial-court reversal did not require the defendant to establish prejudice, but he must at least establish that the conflict "actually affected" counsel's performance. Dual representation in and of itself is a "mere theoretical division of loyalties" and does not mandate a reversal. The dissenters pointed out that this was a capital case, and that any errors should be resolved in favor of the defendant. 5-4 decision.

Alabama v. Shelton, 70 USLW 4438 (2002)

Shelton was tried in an Alabama court on a misdemeanor assault charge. He was not offered state-appointed counsel, and chose to represent himself. He was convicted and sentenced to 30 days in jail, which the judge suspended, and was placed on two years' probation. Shelton appealed, arguing his Sixth Amendment right to counsel was violated by the trial court's failure to appoint an attorney for him, since he faced the possibility of prison time if his probation was revoked. The state supreme court reversed the suspended jail sentence on the ground that the Supreme Court decision in Argersinger v. Hamlin requires appointment of counsel for any offense "that actually leads to imprisonment." The state argued that since Shelton's sentence was suspended, the Argersinger rule did not apply. There was a split of opinion in the state and lower federal courts on whether actual imprisonment had to occur for the provision of counsel to be required.

The Supreme Court held, in a 5-4 decision written by Justice Ginsburg, that a state may not impose a suspended sentence on an indigent defendant for whom it has not appointed an attorney if there exists any chance that the defendant could receive a prison sentence. The majority noted that if Shelton had his probation revoked, the suspended sentence would be applied, and he would be incarcerated. Since the incarceration would be for the underlying offense, rather than the probation violation, the uncounseled suspended sentence was invalid, as it could potentially lead to imprisonment. The Court did not require that actual imprisonment have occurred for the right to counsel to apply. The Court refused the suggestion of amici that the better solution was not to require appointed counsel in all such cases, but to require appointed counsel at the probation revocation hearing, should that ever occur. The Court noted this solution was not sufficient because probation-revocation hearings are informal proceedings and do not allow the defendant to challenge the validity of the underlying conviction. The dissent by Justice Scalia argued that this decision would impose an enormous burden on the states in dealing with misdemeanor defendants. 5-4 decision.

In a Tennessee court, Cone was convicted of murder and sentenced to death after a penalty phase in which the defense attorney put on no evidence, but did cross-examine some of the prosecution witnesses and make a brief opening statement referring to the evidence of post-traumatic stress disorder (PTSD) brought forth during the trial.

On appeal, Cone claimed ineffective assistance of counsel, asserting that his attorney's failure to put on evidence during the penalty phase significantly increased the likelihood of Cone receiving a death sentence. The state court denied the appeal, so Cone filed a habeas petition with the district court. The district court denied the petition on the ground that the state court decisions were not "an unreasonable application of the law" as required under Strickland v. Washington (1984), allowing federal review of a state court interpretation of state law.

The 6th Circuit Court of Appeals reversed, finding that Cone's attorney had provided ineffective assistance of counsel because he did not subject the prosecution's request for the death penalty to "meaningful adversarial testing," and that the state's adjudication of Cone's appeal holding otherwise was an unreasonable application of the law.

Writing for a nearly unanimous court, the Chief Justice reversed the 6th Circuit and held that the "doctrine of presumed prejudice" applies only if a defense attorney completely fails to oppose the prosecution's case. Failing to introduce mitigating evidence and waiving closing argument are specific errors subject to the general "performance and prejudice standard" of Strickland v. Washington. Each of the defense attorney's decisions, the majority claimed, was arguably reasonable. Justice Stevens filed a lone dissent, arguing the majority had misstated the facts and applied the wrong precedent. 8-1 decision.

Knights was placed on probation for a minor drug offense. According to the terms of his probation, he was required to submit to a search at any time, even in the absence of a warrant, probable cause, or even reasonable suspicion, by either a probation or police officer. Shortly after he was placed on probation, Knights became a suspect in an arson investigation. A sheriff's deputy, aware of the search condition in Knights' probation order, conducted a warrantless search of Knights' apartment, where he found material implicating Knights in the arson.

The district court conceded that the deputy had "reasonable suspicion" that Knights was involved in the arson, but nonetheless determined that the search of Knights' residence violated the Fourth Amendment because it was conducted for "investigatory" rather than "probationary" purposes. The district court claimed that the search condition in the probation order allowed warrantless searches on less than probable cause only when the purpose of the search was to see if probation was being complied with, not for the investigation of another crime. The 9th Circuit Court of Appeals affirmed, despite the fact that the California Supreme Court had previously expressly rejected such a distinction.

The Supreme Court unanimously reversed the lower courts and upheld the search of Knights' apartment. Rather than trying to sort out whether the search was investigatory or probationary in nature, the opinion by Chief Justice Rehnquist focused on whether the search was "reasonable" under the Fourth Amendment. The Court held that this particular search, based on reasonable suspicion and authorized by a probation condition, was in fact reasonable.

Weighing the defendant's privacy interests against the government's interest in effective law enforcement, the Court upheld the search under the "totality of the circumstances" approach. The chief justice noted that probation serves several purposes, including rehabilitation of the defendant and protection of the public, and that probationers enjoy a lessened expectation of privacy — tilting the balance in favor of the government. While the Court several times focused on the specific facts of this case, some language in the opinion left open the possibility that searches of a probationer might be considered "reasonable" even in the absence of a specific search condition or reasonable suspicion. 9-0 decision.

United States v. Arvizu, 70 USLW 4076 (2002)

A border-patrol agent observed a minivan driving along an unpaved, rarely traveled road in a remote area of southeastern Arizona, near the Mexican border. As the agent drove by the minivan, it slowed down appreciably. The agent saw two adults and three children inside. The driver did not look at the agent, but all three children repeatedly waved at him in unison. The minivan then turned onto a road just before reaching a border-patrol checkpoint.

At this point, the agent, suspecting drug trafficking, stopped the minivan and sought consent for a search from the driver, Arvizu. Arvizu consented to the search, which turned up two duffle bags containing a large quantity of marijuana. Arvizu was arrested and charged with intent to distribute.

The district court refused to suppress the evidence, but the 9th Circuit Court of Appeals reversed after examining the factors upon which the stop was based and concluding that each of them, viewed in isolation, was subject to an innocent explanation, thus failing to create the "reasonable suspicion" necessary to justify the stop of the vehicle. If the stop was invalid, then any consent obtained thereto was also invalid.

In a unanimous opinion by Chief Justice Rehnquist, the Supreme Court reversed the 9th Circuit and held that facts which are subject to innocent explanations when viewed in isolation may nonetheless be used in determining the existence of "reasonable suspicion" under the "totality of the circumstances" approach. The Court dismissed the lower court's concern that allowing police to use lawful actions as part of the calculus in determining reasonable suspicion might give the police unbridled discretion to stop anyone at anytime. The Court acknowledged that each of the factors used to create reasonable suspicion could have an innocent explanation, but that examining each factor separately would be avoiding reality, and the "totality of the circumstances" approach favors looking at all the factors in conjunction with one another. 9-0 decision.

Drayton and a companion were traveling on a bus from Florida to Detroit. When the bus made a scheduled stop in Tallahassee, the driver collected the passengers' tickets and then permitted three plainclothes police officers to board the bus. One officer went to the rear of the bus, another remained at the front, and a third began walking from the front to the back, displaying his badge to passengers and requesting permission to frisk them and search their baggage. None of the officers informed the passengers they were free to refuse to speak with them or consent to be frisked or have their belongings searched. Drayton and his companion consented to a frisk, and drugs were found taped to their thighs. The district court denied a motion to suppress the evidence, but the 11th Circuit reversed on the ground that consent to search was obtained through coercion, as passengers in this situation would not feel free to disregard requests to search absent some indication that refusal was permitted.

The Supreme Court reversed the 11th Circuit and upheld the constitutionality of the police bus searches. The Court had previously held in Florida v. Bostick (1991) that the question of whether a bus passenger has been "seized"while rendering their consent to an invalid search is to be determined, not by reference to a per se rule that all bus searches are per se seizures, but by an examination of the "totality of the circumstances."

The majority opinion, by Justice Kennedy, asserted that the 11th Circuit ran afoul of the Florida v. Bostick precedent by treating all bus passenger-police encounters as seizures. Looking at the totality of circumstances, Kennedy determined that the situation was not coercive. The police were quiet, polite, and did not brandish any weapons. Thus, passengers should have felt free to leave and therefore were not "seized." Since the passengers were not seized, police could seek valid consent to search. Furthermore, the police are not required to tell passengers they can refuse consent. The dissent by Justice Souter argued that bus passengers in cramped quarters surrounded by officers would not in fact feel free to leave, and thus should be considered "seized" for purposes of determining whether their consent was validly obtained. 6-3 decision.

About 70 percent of adults surveyed in a recent Gallup poll support drug testing of students in extracurricular activities. Following the Supreme Court's endorsement of a school drug-testing program for athletes in Vernonia School District 47C v. Acton (1995), a number of schools adopted drug-testing programs for students involved in sports and other extracurricular activities. The school board in Tecumseh, Oklahoma, adopted a drug-testing policy in 1998 which applied to all students involved in extracurricular activities, from sports to choir to the Future Homemakers of America club. The school board considered testing all students, but decided to test only those involved in extracurricular activities, on the ground that these students had a lower expectation of privacy than students generally. The policy required students to take a drug test prior to beginning the extracurricular activity, be subject to random testing during the season, and be tested at any time based upon the existence of "reasonable suspicion."

Earls was a high-school honor student and self-described "goodie two shoes" who competed on an academic quiz team and tested negative for drugs, but filed suit seeking an injunction against testing on the ground that the policy was humiliating and in violation of her privacy interests. The 10th Circuit Court of Appeals struck down the testing program on the ground that the school board had failed to establish an identifiable drug problem prior to instituting the testing program.

The Supreme Court reversed the lower court. In determining whether drug testing was reasonable under the Fourth Amendment, the Court balanced the privacy interests of students against the government's interest in drug testing. Writing for a narrow majority, Justice Thomas emphasized the "custodial" duties of schools, acting in parens patriae, to protect the safety and health of students. This custodial duty requires the reduction of the privacy interests of students in order for it to be effective. This duty, coupled with the fact that students in extracurricular activities have a lessened expectation of privacy, and the fact that the testing procedure is not overly intrusive, supports allowing the drug-testing program.

The majority rejected the approach of the lower court, saying there was no requirement that the school board first identify a drug problem before instituting the drug-testing program. School drug tests fall under the "special needs" exception to the Fourth Amendment, abrogating the requirement of particularized, individual suspicion or probable cause. The dissent by Justice Ginsburg (in the majority in Vernonia) argued that the policy here was "perverse," as it actually targeted those students least likely to use drugs. The drug test approved in Vernonia, she pointed out, was limited to athletes, who were the leaders of the drug culture in that school, and who faced special health risks associated with drug use. There were no such findings here. 5-4 decision.

Department of Housing and Urban Development v. Rucker, 70 USLW 4206 (2002)

A provision of the 1988 Anti-Drug Abuse Act requires public-housing agencies to include in leases a provision making any drug-related criminal activity on or off the premises by either the tenant, a guest of the tenant, or anyone "under the control of" the tenant grounds for eviction. The Department of Housing and Urban Development (HUD) instituted eviction proceedings against a number of residents of a public housing complex in Oakland, including four elderly ones. Two were evicted because their grandchildren who lived with them were caught smoking marijuana in the apartment-complex parking lot. A third was evicted because her daughter was found with crack cocaine three blocks from the complex. A fourth was evicted because his caregiver was found with crack cocaine in the tenant's apartment.

The evictees filed suit against the housing authority in federal court, seeking an injunction barring the eviction of tenants who were themselves innocent of any wrongdoing. The district court issued an injunction, which was affirmed by the 9th Circuit en banc on the grounds that HUD's interpretation of the federal statute as permitting the eviction of "innocent" tenants was inconsistent with the intent of Congress.

The Supreme Court, in an 8-0 opinion penned by the chief justice, reversed the 9th Circuit, and held that the federal statute gives HUD the authority to evict public-housing tenants based upon the drug-related activities of others, even if the tenant was personally unaware of the drug activity. The Court rejected the 9th Circuit's attempt to read the statute in such a way as to require personal knowledge on the part of the tenant, holding instead that the plain language of the statute makes it clear that personal knowledge is not required.

As for the 9th Circuit's claim that "no-fault" evictions did not seem in line with Congress' intent, the Court pointed out that in fact Congress may very well have intended just such an event, as Congress has a goal of providing public housing that is safe and free of criminal drug use. 8-0 decision (Justice Breyer did not participate).

Cotton and several others were indicted by a federal grand jury for distribution of narcotics. They were convicted, and received a sentence based on the district court's finding that at least 50 grams of cocaine were involved, thus increasing the sentence from the statutory minimum. The quantity was not alleged in the indictment.

The defendants did not object at trial to the judge's finding of fact. While their appeal was pending, the Supreme Court decided Apprendi v. New Jersey (2000), which held that any fact which increases the penalty for a crime beyond the statutorily prescribed maximum must be decided by a jury. On appeal, Cotton then argued that since the drug quantity was neither alleged in the indictment nor submitted to the jury, his sentence was invalid under Apprendi because the judge based the increased sentence on his finding (rather than the jury's) regarding how much cocaine was involved. The 4th Circuit vacated the sentence, citing Apprendi.

The Supreme Court unanimously reversed the lower court, and held, per Chief Justice Rehnquist, that the sentence was not rendered defective by the missing quantity in the indictment nor by the finding of fact by the judge instead of the jury. In federal courts, unobjected-to errors are governed by the "plain error" rule, which states that a claim of trial error raised for the first time on appeal will not be corrected unless the defendant proves: (1) there was an error; (2) the error was "plain"; (3) the error affected a substantial right; and (4) it is the type of error that affects the fairness of the proceeding.

The Supreme Court looked only to the fourth prong of this test, and found that such an error did not affect the fairness of the judicial proceeding. The Court also disagreed with the lower court's assertion that a failure to charge an element of the offense deprived the court of jurisdiction. This case is of tremendous significance, as it may provide a way to salvage the thousands of indictments which occurred pre-Apprendi. 9-0 decision.

In Apprendi v. New Jersey (2000), the Supreme Court held that any factor (other than a prior conviction) that increases the maximum sentence for a crime must be treated as an element of the offense, rather than as a mere "sentencing factor." This means the jury, rather than the judge, must find the existence of this element beyond a reasonable doubt, as it does with every other element of the offense. This decision appeared on its face to be in conflict with another Supreme Court decision, McMillan v. Pennsylvania (1986), which held that mandatory minimum sentences based on

Harris was convicted of selling narcotics, for which the mandatory minimum sentence is five years. The sentence is seven years, however, if the defendant carrys a firearm while selling drugs, or 10 years if the firearm is used during the sale. At sentencing, the judge imposed a seven-year sentence, based on his finding of fact that Harris was carrying a weapon at the time of the drug transaction. On appeal, Harris argued that carrying the weapon is a separate offense, not part of the underlying drug offense, and must therefore be alleged separately in the indictment. The 4th Circuit Court of Appeals affirmed the seven-year sentence.

The Supreme Court, per Justice Kennedy, narrowly rejected extending Apprendi's principle to federal sentencing guidelines and upheld the seven-year sentence. Kennedy argued in his plurality opinion that Apprendi applies only to facts that increase the maximum punishment for an offense. Facts which only increase the minimum sentence are not covered. Two justices who had dissented in Apprendi concurred with the judgment only; four justices who had been in the majority in Apprendi dissented, arguing, per Justice Thomas, that Apprendi applied to all instances where judges rather than juries serve as the finders of facts which increase the length of incarceration, and that the majority in this case was improperly narrowing the reach of the Apprendi precedent. 5-4 decision (plurality opinion).

Kansas v. Crane, 70 USLW 4117 (2002)

Under the terms of the Kansas Sexually Violent Predator Act, the state may seek civil commitment of an incarcerated sexual offender at the expiration of their prison term. In Kansas v. Hendricks (1997), the Supreme Court upheld the act against claims that it violated due process or constituted double jeopardy.

Crane pled guilty to a crime that qualified for potential civil commitment after incarceration, and the state sought civil commitment when his prison term ended. One of the requirements for civil commitment is a showing that the defendant suffers from a "mental abnormality or personality disorder which makes the person likely to engage in repeated acts of sexual violence." At the commitment hearing, expert witnesses testified that Crane suffered from an antisocial personality disorder that affected his ability to control his behavior, but they did not claim he was entirely unable to control himself. On appeal, the state supreme court interpreted Hendricks as requiring a finding that the offender cannot control his behavior.

Writing for the majority, Justice Breyer asserted the state court misinterpreted Hendricks, and that there is no requirement of a finding that an offender cannot control his behavior in order to justify civil commitment. Rather, a state must show not only that an offender is still dangerous, but that there exists at least a "serious difficulty in controlling behavior." Requiring a finding of a complete lack of control would be unworkable because mental-health experts generally do not talk in such absolute terms.

At the same time, Breyer rejected the state's argument that an offender may be committed without evidence of at least some lack of control. The dissent by Justices Scalia and Thomas (author of the Hendricks opinion) said a separate psychiatric determination is unnecessary, and there is no requirement of a finding of any lack of control. They accused the majority of undermining and unduly restricting the Hendricks decision. 7-2 decision.

While there was no single case that garnered the national spotlight as Bush v. Gore did during the 2000 term, the Supreme Court's 2001 term was highlighted by several decisions that will have a significant impact on criminal justice. Major search-and-seizure decisions, as well as important death-penalty decisions such as Atkins v. Virginia, raised more questions than they answered. For instance, at the beginning of the 2002 term, the Supreme Court refused to hear a challenge to a juvenile death-penalty statute, but four justices took the unusual step of dissenting from the denial and arguing that the decision in Atkins v. Virginia suggested it was time to re-evaluate the constitutionality of executing juvenile offenders.

Several other interesting cases have been accepted for argument during the 2002 term. The Court agreed to determine whether public libraries can be required to install software to block sexually explicit Internet sites (United States v. American Library Association). The high court is also considering a challenge to California's three-strikes law (Lockyear v. Andrade), and will revisit sex-offender legislation, this time determining the constitutionality of a sex-offender notification procedure (Godfrey v. Doe). The Court has accepted a case involving the issue of how to evaluate ineffective-assistance-of-counsel claims in death-penalty cases (Wiggins v. Corcoran). Any of these decisions could have a major impact on criminal justice.

This is unquestionably the Rehnquist court, 2001 being his 30th year. Once referred to as the "Lone Ranger" for his frequent solitary dissents, he now finds his viewpoint in many areas adopted by a majority of the justices. His views have not changed, but those of the other justices have, and the Court has moved toward him. Rehnquist still loses regularly in some areas (such as privacy rights), but his views on the Fourth Amendment, federalism, and the role of federal courts in the appeals process for criminal defendants have all become mainstream (although just barely, as with the 5-4 federalism decisions). He did dissent from the three major death-penalty decisions.

Given the narrow margin in so many cases, the composition of the Supreme Court is of great importance. The current Court has been together for better than eight years, the longest such period of stability since the 1820s. The average age of the justices is near 68, ranging from Thomas (54) to Stevens (83). Several justices have reportedly been contemplating retirement for many years. With Republicans regaining control of the Senate in fall 2002, it is possible several members of the Court may elect to step down in the near future. President Bush would then have an opportunity to significantly reshape the Court. How this will affect future decisions is anyone's guess.