Criminal Defense Lawyers Need Broad Knowledge

A criminal defense lawyer must know more than just criminal law. That was certainly brought home earlier this year when the U.S. Supreme Court held that part of a criminal defense lawyer's constitutional duty to a noncitizen defendant is to provide accurate advice concerning possible deportation consequences of a criminal conviction. Padilla v. Kentucky, 130 S.Ct. 1473 (2010).

There is another area of the law in which a criminal defense lawyer must be prepared to provide advice: possible civil suits by the defendant against the government, which may arise out of the criminal case. If you are looking for a concise, well-written review of the current state of the law, I would recommend Chief Judge Frank H. Easterbrook's two-page opinion in Evans v. Poskon, 603 F.3d 362 (7th Cir. 2010).

Police entered Ty Evans' house based on a reasonable belief that he was attempting to strangle a person to death. Testimony diverges concerning what happened inside. Police claimed that Evans resisted the police and they had to use force to control him; Evans, on the other hand, insisted the police had used unreasonable force and unnecessarily injured him.

Evans was tried in an Indiana state court for attempted murder and resisting arrest. He was convicted and sentenced to 71 years in prison. He then filed a federal civil suit pursuant to 42 U.S.C. sec. 1983 in which he alleged both that he had never resisted arrest and that the police used illegal force against him during and after the arrest.

Note that Evans alleged that he had not resisted arrest despite the fact that his conviction for resisting arrest had never been invalidated. In granting summary judgment to the police officers, the federal district judge relied on the U.S. Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477 (1994). Heck held that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harms caused by actions whose unlawfulness would render a conviction or sentence invalid, a Section 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination or called into question by a federal court's issuance of a writ of habeas corpus." At 486-7. If the plaintiff cannot prove this, then the claim is not cognizable under Section 1983. Applying Heck to Evans's complaint, the district judge ruled that Evans could not maintain in his 1983 complaint that he had not resisted arrest, so long as his conviction on that very ground was valid. Therefore, the judge granted summary judgment on the entire claim.

The 7th Circuit disagreed. It first noted that Evans had actually made three different claims in his complaint. In addition to alleging that he had never resisted arrest, he also averred that the police had used unconstitutionally excessive force both before and after he was taken into custody. And since the U.S. Supreme Court decided Wallace v. Kato, 549 U.S. 384 (2007), these types of claims must be considered separately. This is because Heck only bars those claims that are incompatible with an existing, valid conviction; Heck has no effect on those claims that do not depend on the invalidity of an existing conviction.

For example, assume that the police made a blatantly illegal arrest of a person who is later convicted of an offense. The Supreme Court has long held that an unconstitutional arrest per se has no effect on a criminal conviction; its unconstitutionality is germane only if it results in evidence that the State is trying to use at the criminal trial. Criminal practice does not recognize a "Motion to Quash Arrest" standing alone; rather, it only recognizes a "Motion to Quash Arrest and to Suppress Evidence." The Fourth Amendment does not mandate that a court must "suppress the body" in a criminal case. U.S. v. Alvarez-Machain, 504 U.S. 655 (1992) (citing Frisbie v. Collins, 342 U.S. 519 (1952) and Ker v. Illinois, 119 U.S. 436 (1886). Thus, the existence of a valid conviction would not preclude a civil suit pursuant to Heck.

The 7th Circuit thus bifurcated Evans' 1983 claims. It found that the district court was correct in holding that the count based on resisting arrest could not proceed because of the existing conviction for resisting arrest. But the allegations of excessive force in making the arrest are entirely separate from — and wholly consistent with — that conviction. Therefore, those counts may proceed under Wallace v. Kato. The 7th Circuit thus reversed and remanded to provide Evans the opportunity to proceed only on his excessive force counts.

What makes Evans so significant for criminal defense attorneys is that the clear trend in the Roberts Court is to make the Fourth Amendment exclusionary rule applicable in fewer and fewer criminal cases. For example, four years ago the Supreme Court held that a Fourth Amendment violation based on the police failure to "knock and announce" would not justify the exclusion of evidence at a criminal trial. Hudson v. Michigan, 547 U.S. 586 (2006). And then last year the court suggested that non-exclusion might actually be the default rule for Fourth Amendment violations. It held that exclusion of evidence in a criminal case should be a Fourth Amendment remedy only if it "serves to deter deliberate, reckless or grossly negligent conduct, or in some circumstances recurring or systemic negligence." Herring v. U.S., 129 S.Ct. 695 (2009). These decisions have led Judge Richard A. Posner to declare that "[T]he exclusionary rule is bound some day to give way to [civil remedies]." U.S. v. Sims, 553 F.3d 580 (7th Cir. 2009).

But the fact that the Fourth Amendment exclusionary rule may or may not apply at the criminal trial must not deter a criminal defense attorney from advising the client about possible civil remedies. Wallace v. Kato itself provides a cautionary tale. There the defendant's murder conviction was overturned based on a finding that certain incriminating statements introduced at trial were the fruit of defendant's illegal arrest. Subsequently, the defendant filed a 1983 suit based on the unconstitutional arrest. But the U.S. Supreme Court held that the suit was timebarred. It held that the statute of limitations for the 1983 suit began running at the time the defendant was arrested — not when the conviction was set aside. Based on the statute of limitations, the Supreme Court found that the suit was barred.

No one expects a criminal defense lawyer to also be an expert in immigration law and 1983 suits. But she must be aware of these issues and must understand when experts in those areas must be consulted.