Friday, January 23, 2009

Improper police behavior dismissed as "technicality"

A few years ago, it was fashionable to state that criminals were getting off on a "technicality" like a violation of their rights under the constitution for illegal searches and seizures. The Supreme Court decided a case described by my friend and colleague, Todd Foster, below. It is a bad decision, but that's the kind of Court we get when we elect certain types of presidents......

While recently reading new cases, it occurred to me that you may be interested in new or significant developments in federal criminal law that I come across in my work. With that in mind, I have decided to send occasional emails summarizing interesting new cases from around the country.

Herring v. U.S. The Supreme Court, on January 14, 2009, constricted even further the right to suppress evidence illegally obtained by law enforcement. In this case, the Court held that even though the government conceded the defendant (Herring) had been illegally searched, the evidence would not be suppressed. Twenty five years earlier, in U.S. v. Leon, the Court held that evidence obtained by officers relying on an invalid judicial act need not be suppressed, as there is no deterrent value in punishing the police for relying on a judicial act. In Herring the defendant was illegally arrested on an invalid arrest warrant which the police "negligently" failed to purge from their system. Upon arresting Herring on the invalid warrant, officers found a gun and drugs, which formed the basis of the prosecution. Speaking for the 5-4 majority, Chief Justice Roberts found no deterrent value in suppressing this evidence either, as the negligent act of the police department in failing to clear the warrant was not sufficiently "objectively culpable" to require suppression.

A strong dissent authored by Justice Ginsburg points out that suppression is required to make sure the police act diligently. She argues the civil concepts of respondent superior and tort liability for negligence demonstrate that our system relies upon individuals and entities acting with care, and this ruling does not. She mentions frightening flaws in numerous government databases such as NCIC and the terrorist watch list, and wonders what the impact on individual liberties will be from a rule excusing scrupulous monitoring and updating of such databases.

I think the dissent has it right. Suppression issues involving clearly inadmissible evidence have now become much harder for the defense. When all else fails for the government, the prosecution can now argue that the officer was merely negligent, leaving the burden to the defense to show the wrongful act was done with a wrongful or reckless purpose.

Speaking of unlawful acts, the Court of Appeals for the Ninth Circuit earlier this month upheld the Medicare fraud conviction of a doctor despite the failure of the charging indictment to allege the essential element of willful misconduct and the judge's erroneous charge to the jury that the government need not prove the doctor knew his acts were unlawful. Finding these errors waived or excusable as harmless error, the Court upheld the conviction and the 180-month prison sentence. Might the result have been different had Dr. Awad been charged under a facially valid indictment, and the jury properly instructed? We will not know unless the case is re-heard or taken to the Supreme Court (U.S. v. Awad, No. 06-50578, Op. filed January 12, 2009).

Until next time,


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