High Court's Output Small But Significant

The U.S. Supreme Court began its summer recess on June 29. During this past term, the court issued a total of 74 signed opinions following oral argument. This is about half the court's output compared with its yearly workload a few decades ago. Look at it this way: during the nine months the Roberts Court was in session, each justice's chambers (which includes four clerks) was responsible for producing a little less than one majority opinion per month.

It may have been Robert Bork who first said "Nice work - if you can get it."

As usual, over a quarter of the court's opinions concerned criminal law issues. And there were some important constitutional decisions involving the Fourth, Fifth and Sixth Amendments.

In the Fourth Amendment area, the most significant may have been Herring v. U.S., 129 S.Ct. 695 (2009). The police arrested Herring based on mistaken information - a subsequently recalled warrant erroneously listed as still valid - found on a police database. The illegal arrest yielded illegal drugs. Although the court found a Fourth Amendment violation, it refused to invoke the exclusionary rule. The court said that exclusion of evidence should only be used to deter "deliberate, reckless, or grossly negligent conduct" or at least "systemic negligence," none of which was present in Herring.

Herring and Hudson v. Michigan, 547 U.S. 586 (2006) (exclusionary rule inapplicable to "knock and announce" violations) show that the Roberts Court may be on a mission to further restrict - if not eliminate - the Exclusionary Rule. (The 7th U.S. Circuit Court of Appeals has not missed this point. Read its take on Herring in Guzman v. City of Chicago, 565 F.3d 393 and U.S. v. Watson, 558 F.3d 702.)

Two cases dealt with vehicle stops. In Arizona v. Johnson, 129 S.Ct. 781 (2009), a unanimous court gave a victory to police by holding that during a traffic stop officers may conduct a Terry frisk of any passenger in the vehicle as long as they have reasonable suspicion the person is armed and dangerous. In other words, the frisk in these circumstances is proper even if the police have no reason to believe the passenger himself is engaged in any criminal activity. The court based its decision on the "legitimate and weighty" interest in police safety in light of the fact that traffic stops are "especially fraught with dangers to police officers."

On the other hand, in Arizona v. Gant, 129 S.Ct. 1710 (2009), the court gave the defense a win by restricting the power of the police to search a vehicle following the arrest of a recent occupant. The old rule under New York v. Belton, 453 U.S. 454 (1981), provided that the arrest of a recent occupant allowed the police - under the banner of "officer safety" - to automatically search the entire passenger compartment, including any containers found therein. Recognizing that arrestees are invariably secured before a Belton search, Gant held in a 5-4 decision that "officer safety" was not a valid justification for this kind of extensive search. Instead, the new rule is that the police are allowed to search the passenger compartment pursuant to a recent occupant's arrest only if it is reasonable to believe either that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of the arrest.

The court issued a significant Miranda decision in a 5-4 ruling in Montejo v. Louisiana, 129 S.Ct. 2079 (2009). In 1986, Michigan v. Jackson, 475 U.S. 625, had held that a defendant's assertion of his right to counsel in a Sixth Amendment setting (e.g., an arraignment) should also be presumed to be an assertion of the Fifth Amendment right to counsel under Miranda v. Arizona. Thus, Jackson forbade the police from even attempting to interrogate an individual once he had asserted his Sixth Amendment right to counsel, unless the individual himself initiated contact with the police.

Montejo explicitly overruled Jackson. It held that the right to counsel under the Sixth Amendment should not be conflated with the Fifth Amendment right to counsel under Miranda. Thus, police are free to approach a person whose Sixth Amendment right to counsel has attached, read him his Miranda warnings, and ask him if he would answer questions; at the same time, if the person asserts his right to counsel under Miranda, the police must cease questioning until counsel is provided. (The court recently agreed to decide what should be another major Miranda case next year: whether Miranda warnings must explicitly inform the suspect that he has the right to have counsel with him personally at all times during any interrogation. Florida v. Powell, No. 08-1175, cert. granted June 22.)

In another Fifth Amendment case, the court gave the defense a significant victory under the Double Jeopardy Clause.

Traditionally, the inability of a jury to reach a verdict on a charge did not preclude the state from trying the defendant again on the same charge. A retrial did not put the defendant in jeopardy a second time because the hung jury meant there was no completion of the first jeopardy. The retrial was proper under the theory of "continuing jeopardy." In fact, decades ago the Supreme Court held that a defendant could not prevent a retrial on a deadlocked count even if the defendant could prove that the state failed to produce proof beyond a reasonable doubt at the first trial where the jury hung. Richardson v. U.S., 468 U.S. 317 (1984).

Yet in Yeager v. U.S., 2009 U.S. LEXIS 4538, the court created a significant exception to this rule. Yeager involved a trial of multiple counts. The jury acquitted on some counts and hung on others. Pursuant to Richardson, federal prosecutors announced their intent to retry Yeager on the counts on which the jury hung.

But the Supreme Court held that the prosecutors may be barred from retrying some of the counts. Citing Ashe v. Swenson, 397 U.S. 436 (1970), the court stated that the collateral estoppel component of double jeopardy precludes the prosecution from re-litigating any issue that was necessarily decided by a jury's acquittal.

The government argued that the facts in Yeager were different because, while Ashe only involved one count and one acquittal, the acquittals in Yeager were accompanied by counts on which the jury hung, thus making the jury's overall trial findings ambiguous.

The Supreme Court disagreed. The court held that to determine what the jury decided the court should look only to the jury's actual decisions - i.e., its unanimous verdicts. Because a jury speaks only through its verdicts, the jury deadlocks on the other counts are simply "nonevents." And if the jury through an acquittal "necessarily decided" an issue of ultimate fact that the prosecution would have to prove at the retrial of a hung count, then the Double Jeopardy Clause would forbid the retrial.

Yeager promises to present problems to prosecutors who try multi-count cases that produce both acquittals and jury deadlocks. But the case with the potential for causing prosecutors the biggest headache is Melendez-Diaz v. Massachusetts, 2009 U.S. LEXIS 4734.

In a 5-4 decision, Melendez-Diaz held that the Sixth Amendment's Confrontation Clause requires the prosecution, if it wishes to present a lab report as evidence in a criminal trial, to make the analyst who prepared it available for cross-examination by the defense. Justice Anthony Kennedy's dissent called the decision "a distortion of the criminal justice system." It presented a parade of horribles based on what it claimed to be the questions left open in the case.

Just how many questions were left open in Melendez-Diaz? The case was decided on June 25. By June 29 the court had already granted cert in a case containing a Melendez-Diaz issue: Briscoe v. Virginia, No. 07-11191. With Florida v. Powell and Briscoe already on the docket -- and Sonia Sotomayor ready to replace Justice David H. Souter - the 2009 term may be as eventful as the term just completed.