The title I gave this post is actually not quite accurate. Five years ago, in its 2010 decision in Padilla v. Kentucky, 559 U.S. 356 (2010), the U.S. Supreme Court established that criminal defense attorneys have an obligation, as part of the Sixth Amendment guarantee of effective assistance of counsel, to advise noncitizen clients about the immigration consequences of the criminal charges against them. In its recent decision in State v. Nkiam, ___ N.C. App. ___ (Nov. 3, 2015), temp. stay allowed, ___ N.C. ___ (Nov. 23, 2015), the North Carolina Court of Appeals found that the defendant’s counsel failed to meet this obligation. Although Nkiam seems like a straightforward application of Padilla, it has caught people’s attention because it is the first North Carolina appellate decision to address the merits of a Padilla claim of ineffective assistance of counsel. (In previous cases, the North Carolina Court of Appeals found it unnecessary to address the merits of the defendant’s claim, holding that Padilla did not apply retroactively and did not afford relief to a person whose conviction was final before Padilla was decided. State v. Alshaif, 219 N.C. App. 162 (2012); accord Chaidez v. United States, ___ U.S. ___, 133 S. Ct. 1103 (2012).) Continue reading
Tag Archives: sixth amendment
In connection with some teaching that I have coming up, I’ve prepared a short outline summarizing the law of interrogation. It’s available as a PDF here. It covers voluntariness, Miranda, and the Sixth Amendment right to counsel, plus the recording requirements of G.S. 15A-211, including the statutory amendments that took effect on December 1. I wrote it with judges and lawyers in mind, but I tried to keep it free of mumbo jumbo so that officers would also be able to use it. As always, I welcome your feedback.
Yesterday, the United States Supreme Court decided Berghuis v. Smith, a case in which the defendant claimed that the pool from which his jury was selected was not a fair cross section of the community. In my experience, it is not uncommon for a defendant, particularly a minority defendant, to look at the jury pool and say something like “I thought I was supposed to have a jury of my peers!” Since the issue comes up reasonably often, it’s worth taking a look at the basic doctrine, which is as follows:
1. The Sixth Amendment guarantees the right to trial by jury.
2. “[T]he American concept of the jury trial contemplates a jury drawn from a fair cross section of the community.” Taylor v. Louisiana, 419 U.S. 522 (1975).
3. If a defendant can show that a “distinctive” group is significantly underrepresented in a jury pool as a result of “systematic exclusion,” he has made a prima facie case that his fair cross section rights have been violated. Duren v. Missouri, 439 U.S. 357 (1979).
4. Such a defendant is entitled to relief — the exact nature of which may depend on the stage of the case — unless the state can show that the discrepancy is the result of eligibility requirements or exemptions from service that “manifestly and primarily advance[]” a “a significant state interest.” Id.
Remember, all of this has to do with the jury pool, not with the selection of the jurors from the pool. Claims of discrimination in that process are addressed under the framework established in Batson v. Kentucky, 476 U.S. 79 (1986).
Let’s look at how this doctrine applied in Smith. The defendant was an African-American man charged with murder. Between 60 and 100 prospective jurors appeared for jury selection. “[A]t most, three venire members were African-American.” The defendant objected to the venire, but his objection was overruled. The defendant was convicted, and appealed. The state intermediate appellate court ordered the trial court to conduct an evidentiary hearing on the fair cross section issue.
At the hearing, the evidence showed that prospective jurors were assigned to local misdemeanor courts first, and only once those courts’ needs were met were any remaining prospective jurors assigned to the county-wide felony court in which the defendant was tried. Shortly after the defendant’s trial, this system was changed because court officials believed that the local misdemeanor courts “swallowed up” most of the minority jurors, leaving few for the county-wide felony court.
The statistical evidence showed that blacks were 7.28% of the local jury-eligible population, and 6% of the jury pool at the county-wide felony court over the six months leading up to Smith’s trial. The “absolute disparity” was therefore 1.28%, while in relative terms, blacks were 18% underrepresented. (7.28% – 6% = 1.28%, and 1.28/7.28 = 18%.) This 18% underrepresentation shrank to 15% after the system for assigning prospective jurors was changed.
The trial court, the state intermediate appellate court, and the state supreme court disagreed over how the disparity should be measured (in absolute terms, relative terms, or otherwise); whether it was significant; and whether it was the result of systematic exclusion. The state supreme court ruled in the state’s favor, and Smith sought federal habeas review. The federal district court denied relief, but the Sixth Circuit reversed finding sufficient evidence of systematic exclusion. The Supreme Court reversed again. (As an aside, this is the third time this Term that the Court has reversed a Sixth Circuit decision granting habeas relief. Two more cases are pending, as noted here. I haven’t seen a statistical analysis, but I suspect that the Sixth Circuit is the second-most-reversed federal court of appeals.)
The Court declined to adopt a single test for disparity, describing each of the several statistical techniques used by the parties as “imperfect.” Nor did it establish a clear threshold for when a disparity is significant enough to raise fair cross section concerns. Instead, it found that the Sixth Circuit erred, under the deferential standard of review mandated by the Antiterrorism and Effective Death Penalty Act, in finding that any underrepresentation was the result of systematic exclusion. It found that Smith’s best explanation for how blacks were systematically excluded from his jury pool — through the system of assigning prospective jurors to local misdemeanor courts first — was unpersuasive in light of the nominal change in the underrepresentation of blacks when the system was abandoned. Smith also argued that systematic exclusion resulted from practices such as “excusing people who merely alleged hardship or simply failed to show up for jury service, . . . rel[ying] on mail notices, . . . fail[ing] to follow up on nonresponses, . . . us[ing] . . . residential addresses at least 15 months old, and . . . refus[ing] . . . to enforce court orders for the appearance of prospective jurors,” but the Court rejected this as unsupported speculation.
Justice Thomas concurred, suggesting that there is no fair cross section requirement in the Sixth Amendment, which was adopted at a time when many states forbade women, those who did not own property, and other groups, from serving on juries. (Maryland apparently didn’t permit atheists to serve.)
The Supreme Court has long emphasized that the fair cross section requirement must be applied in a flexible way that accommodates local practices. In the wake of Smith, federal courts will probably be even more reluctant to find fair cross section violations. Except in extreme cases, state courts may be no more receptive to such claims. Certainly, fair cross section claims don’t appear to have had a great history of success in the North Carolina courts. See, e.g., State v. Williams, 355 N.C. 501 (2002) (12% disparity insufficient to establish significant underrepresentation, and discussing cases in which even greater disparities were not enough; also noting lack of evidence of systematic exclusion). So when a defendant says “that’s not a jury of my peers,” the constitutional answer, in most cases, is “yes, it is.”
Update: Another statistical analysis of Judge Sotomayor’s work in criminal cases appears here. The conclusion — that she’s pretty close to the middle of the road — is the same as the conclusion in the McClatchy story I referenced originally, but the figures are very different, showing that she has ruled in favor of the defendant in only 7% of criminal cases. I assume that the difference is explained by differences in the data sets, like McClatchy’s exclusion of habeas cases.
Original Post: Bob Farb’s detailed exploration of Montejo v. Louisiana is available here. (My previous post on the case is here.) Two terrific things about Bob’s summary are (1) the amount of context that it provides, and (2) the clear explanation that it provides of how Montejo will affect officers’ work.
The decision has, justifiably, begun to attract some public attention, including a New York Times editorial, here, and a National Law Journal piece, here, juxtaposing the case against Judge Sonia Sotomayor’s nomination to the Supreme Court, and emphasizing the importance of a single vote.
Speaking of Judge Sotomayor, an interesting piece about her criminal law decisions by the McClatchy Newspapers appears here. The conclusion is that she’s “far from soft on crime,” a conclusion based in part on statistics showing that she voted in favor of the defendant in 28% of the criminal cases she’s heard over the past five years. Apparently, that’s par for the course on the Second Circuit. (In the Fourth Circuit, or in our state appellate courts, that number would put her on one end of the bell curve, but perhaps different courts see different types of issues.)
Two big developments at the United States Supreme Court. First, President Obama nominated Judge Sonia Sotomayor to replace Justice David Souter. The New York Times story is here, some News and Observer coverage is here, and SCOTUSblog has some interesting tidbits here.
This post will focus not on Judge Sotomayor — who, most think, won’t change the balance of the Court much — but on a significant criminal procedure decision that the Court issued yesterday. The case is Montejo v. Louisiana, and you can read it here.
The defendant in Montejo was arrested for murder. He went to court for a “72 hour hearing,” as required by Louisiana law, and was appointed a lawyer as a matter of course. That same day, officers went to the jail, obtained a Miranda waiver from the defendant, and questioned him, obtaining, among other things, an “inculpatory letter of apology to the victim’s widow.”
The state sought to introduce the letter, and the defendant argued that it was obtained in violation of Michigan v. Jackson, 475 U.S. 625 (1986), which held that “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” The trial court admitted the letter, and the state supreme court affirmed, ruling that the defendant had never “asserted” his right to counsel at the 72 hour hearing, but rather had stood silent while counsel was appointed, and thus Jackson never came into play. The defendant sought review in the Supreme Court, which granted certiorari and indicated that it would consider not only the merits of the defendant’s Jackson claim, but also whether Jackson itself should be overruled.
In a 5-4 decision, the Court overruled Jackson. Justice Scalia’s majority opinion reasoned as follows: Jackson is difficult to apply in the two dozen or so states, including Louisiana, in which counsel is appointed as a matter of course, without a specific request by the defendant. Has a defendant in an automatic-appointment state asserted his right to counsel by “accepting” appointment, given that he has no choice about it? Must he do something further, such as thank the court for the appointment? Or must he jump in with an explicit request for counsel, even though no request is necessary to secure representation? Questions like these led the majority to conclude that Jackson has proved unworkable. Further, the majority determined that Jackson has resulted in unjustified discrepancies between states, since defendants in states where a request for counsel is a necessary precursor to appointment almost automatically fall within Jackson, while defendants in states where no request is necessary normally do not.
Next, the majority rejected the defendant’s proposed solution to the problems described above: a rule that once a defendant is represented by counsel, whether by request or automatic appointment, police may not initiate further interrogation. The majority viewed such a position as inspired by legal ethics — specifically, by the rule that an attorney may not communicate directly with a represented party — not by the Constitution. It observed that the right to counsel is waiveable, and may be waived in the absence of counsel. Thus, the rule suggested by the defendant would be a prophylactic rule — justifiable, if at all, to prevent police from badgering defendants to waive their right to counsel. The majority viewed such a prophylactic rule to be unnecessary, as defendants are already protected from coercive interrogation by the requirement that waivers be voluntary, by Miranda, and by other safeguards.
Thus, the majority concluded, Jackson as decided is unworkable, and the defendant’s suggested expansion of Jackson is unjustifiable, leaving the reversal of Jackson as the logical path. Stare decisis does not prevent the overruling of Jackson, the majority held, because the decision was poorly reasoned, “is only two decades old,” and has not resulted in substantial reliance. (The role of stare decisis in this case and in the case of Arizona v. Gant, decided earlier this Term, was the subject of undignified sniping in Justice Alito’s concurrence and Justice Stevens’s dissent.)
What does the overruling of Jackson mean as a practical matter? It means that even after counsel is appointed — in North Carolina, generally at a defendant’s first appearance in district court — officers may approach a defendant outside the presence of counsel and seek to question him, including about the charges for which counsel was appointed. Of course, if the defendant is in custody, the officers must obtain a valid Miranda waiver before proceeding, and they may not approach the defendant at all if the defendant has previously invoked his right to counsel under Miranda.
It is not entirely clear how the decision affects officers’ interactions with defendants who have been appointed counsel but who are not in custody. Clearly, officers may approach such defendants, and officers don’t need to comply with Miranda since it doesn’t apply in non-custodial settings, but it appears that officers still must obtain a waiver of such defendants’ Sixth Amendment rights before questioning may proceed. And what if a non-custody defendant invokes, rather than waives, his right to counsel? It is not clear — to me, at least — whether the officers may approach the defendant again later, or whether the defendant’s invocation of his Sixth Amendment rights bars all future approaches. I welcome thoughts about that issue, as well as any of the other questions raised by, or addressed in, Montejo.
Last term, the United States Supreme Court decided Rothgery v. Gillespie County, available here. As most folks likely know, before Rothgery, North Carolina law held that a defendant’s Sixth Amendment right to counsel “attached” when the defendant had his first appearance before a district court judge. After Rothgery, it’s clear that the right attaches at the defendant’s initial appearance before a magistrate.
Since the initial appearance almost certainly isn’t a “critical stage,” though, Rothgery doesn’t require that a lawyer be made available to the defendant before or during the initial appearance. Most defendants, in most districts, have lawyers appointed at a first appearance that takes place within a day or two of the initial appearance, and that’s very likely OK under Rothgery. However, misdemeanor defendants and out-of-custody felony defendants have no statutory right to a prompt first appearance, see G.S. 15A-601, and some districts do not provide such defendants with first appearances within a few days of arrest. Whether those districts are Rothgery-compliant isn’t clear yet. The Rothgery opinion requires that “counsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself,” but doesn’t define a “reasonable time.”
As an aside, one effect of Rothgery has been to change the rules for officers who wanted to interview out-of-custody defendants after the initial appearance but before the first appearance. Previously, such defendants had neither a Fifth Amendment/Miranda right to counsel (because they weren’t in custody) nor a Sixth Amendment right to counsel (because the right hadn’t attached yet). After Rothgery, such defendants have a Sixth Amendment right to counsel, and because interviews with the police are a critical stage, an officer seeking to interview such a defendant must obtain a Sixth Amendment waiver.
But back to the main story about the appointment of counsel. Two pieces of legislation are pending before the General Assembly that would have magistrates appoint counsel. (I mentioned one briefly in the post that you can view here.) H848 would allow all magistrates to appoint counsel, but based on the General Assembly’s website, H848 doesn’t seem to be progressing. The other bill is S514, which allows a magistrate to appoint counsel only if he or she (1) is an attorney and (2) is authorized to appoint counsel by his or her chief district court judge. It seems to be rolling right along.
My understanding is that neither bill was intended as a response to Rothgery. They were simply meant to lift some of the weight off the shoulder of district court judges. Still, some of the discussion about the bills has focussed on whether they would obviate potential Rothgery problems, like the concern mentioned above about districts that don’t offer prompt first appearances to all defendants. My view is that S514, as written, probably doesn’t remove that concern. My guess is that less than 20% of North Carolina magistrates are lawyers, maybe closer to 10%. So even if every magistrate who is a lawyer were authorized to appoint counsel, it wouldn’t ensure that all defendants had counsel appointed within a few days of initial appearance — because most initial appearances would still be conducted by nonlawyer magistrates — and a number of districts would still have procedures in place that could be challenged under Rothgery. (To be perfectly clear, I’m not arguing that such challenges would be successful; that’s the subject of another post, and the majority and the concurrence in Rothgery appear to have very different views about that.)
I’m interested in hearing from readers about a lot of related issues: what do you think of allowing magistrates to appoint counsel? If you support the idea, do you think that there’s good reason to limit that to magistrates who are lawyers? More broadly, have Rothgery issues come up in your districts? If you have thoughts about any of this, please post a comment.
The Supreme Court’s latest criminal law decision is Kansas v. Ventris, available here. The basic holding is that a statement obtained in violation of a defendant’s Sixth Amendment right to counsel may be admitted for impeachment purposes, so long as the statement was voluntary.
In brief, the defendant in Ventris was charged with murder and other offenses, and the police had a jailhouse informant ask him about the crimes. The defendant confessed, but because the informant deliberately elicited information, rather than serving as a mere listening post, the defendant’s statements were obtained in violation of the Sixth Amendment, and the state did not introduce them in its case in chief. The defendant took the stand and testified that someone else committed the crimes, at which point, the state was allowed to introduce the defendant’s statements for impeachment. Interestingly, the defendant was actually acquitted of the murder, but was convicted of other charges. Showing what some might see as a certain chutzpah, he appealed the lesser convictions, arguing that the state should not have been able to impeach him with his statements to the informant.
The Kansas Supreme Court agreed, but the United States Supreme Court reversed. The majority concluded that barring the use of such statements for impeachment would not add much deterrent value to the sanction of excluding such statements from the prosecution’s case in chief, and any incremental increase in deterrence was outweighed by the “need to prevent perjury and to assure the integrity of the trial process.”
The Court had previously ruled that statements obtained in violation of Miranda may be used for impeachment. Harris v. New York, 401 U.S. 222 (1971). And the Court foreshadowed the Ventris holding in Michigan v. Harvey, 494 U.S. 344 (1990), which itself allowed a statement obtained in violation of the Sixth Amendment to be used for impeachment — though in that case, Miranda warnings were given after the police wrongly initiated interrogation and the defendant explicitly waived counsel. In light of Harris and Harvey, the Ventris decision is not surprising, but it settles an open question, one that had become more important in light of the Court’s recent expansion of Sixth Amendment rights in Rothgery v. Gillespie County, 554 U.S. __ (2008) (holding that a defendant’s Sixth Amendment rights attach at his initial appearance before a magistrate rather than at his first appearance before a judge). With the Sixth Amendment right to counsel attaching earlier under Rothgery, there will likely be more situations in which violations of that right are alleged, and thus more situations in which courts will need to consider the use of statements obtained in violation of that right. Ventris, in that respect, is timely.
