This is Thomas Edison High School in San Antonio, Texas, the site where Alfonso Lopez, Jr., brought a gun to school in violation of the Gun-Free School Zones Act of 1990.
I obtained these (blurry) photographs from Lopez’s high school yearbook.
The caption reads “Rushing down the field, Alfonzo Lopez warms up before the game.”
Powerful words from the Chief’s dissent in Kaley v. United States, joined by Justices Breyer and Sotomayor:
The issues presented here implicate some of the most fundamental precepts underlying the American criminal justice system. A person accused by the United States of committing a crime is presumed innocent until proven guilty beyond a reasonable doubt. But he faces a foe of powerful might and vast resources, intent on seeing him behind bars. That individual has the right to choose the advocate he believes will most ably defend his liberty at trial.
…
Federal prosecutors, when they rise in court, represent the people of the United States. But so do defense lawyers— one at a time. In my view, the Court’s opinion pays insufficient respect to the importance of an independent bar as a check on prosecutorial abuse and government overreaching. Granting the Government the power to take away a defendant’s chosen advocate strikes at the heart of that significant role. I would not do it, and so respectfully dissent.
Every criminal defense attorney in the country should take a bow (unless the DOJ moves to freeze their client’s funds so they can’t be retained).
The unusual alignment in Kaley v. United States gave us something of a treat–Justice Kagan writing a majority opinion, with Chief Justice Roberts writing a dissent. These two are my favorite writers on the Court, and this opinion does not disappoint.
Kagan’s opening makes a mundane fact pattern about civil asset forfeiture understandable, and even interesting.
A federal statute, 21 U. S. C. §853(e), authorizes a court to freeze an indicted defendant’s assets prior to trial if they would be subject to forfeiture upon conviction. In United States v. Monsanto, 491 U. S. 600, 615 (1989), we approved the constitutionality of such an order so long as it is “based on a finding of probable cause to believe that the property will ultimately be proved forfeitable.” And we held that standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer.
In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property. The trial court convened a hearing to consider the sei- zure’s legality under Monsanto. The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury’s prior determi- nation of probable cause to believe they committed the crimes charged. We hold that they have no right to reliti- gate that finding.
This prose, past and present, is a joy to read:
This Court has twice considered claims, similar to the Kaleys’, that the Fifth Amendment’s right to due process and the Sixth Amendment’s right to counsel constrain the way the federal forfeiture statute applies to assets needed to retain an attorney. See Caplin & Drysdale, 491 U. S. 617; Monsanto, 491 U. S. 600. We begin with those rul- ings not as mere background, but as something much more. On the single day the Court decided both those cases, it cast the die on this one too.
And this paragraph:
And that inviolable grand jury finding, we have decided, may do more than commence a criminal proceeding (with all the economic, reputational, and personal harm that entails); the determination may also serve the purpose of immediately depriving the accused of her freedom. If the person charged is not yet in custody, an indictment trig- gers “issuance of an arrest warrant without further in- quiry” into the case’s strength. Gerstein, 420 U. S., at 117, n. 19; see Kalina v. Fletcher, 522 U. S. 118, 129 (1997). Alternatively, if the person was arrested without a war- rant, an indictment eliminates her Fourth Amendment right to a prompt judicial assessment of probable cause to support any detention. See Gerstein, 420 U. S., at 114, 117, n. 19. In either situation, this Court—relying on the grand jury’s “historical role of protecting individuals from unjust persecution”—has “let [that body’s] judgment sub- stitute for that of a neutral and detached magistrate.” Ibid. The grand jury, all on its own, may effect a pre-trial restraint on a person’s liberty by finding probable cause to support a criminal charge.
This is a great conclusion, though I think there may an odd usage in the last sentence:
The same result follows when, as here, an infringement on the defendant’s property depends on a showing of prob- able cause that she committed a crime. If judicial review of the grand jury’s probable cause determination is not warranted (as we have so often held) to put a defendant on trial or place her in custody, then neither is it needed to freeze her property. The grand jury that is good enough— reliable enough, protective enough—to inflict those other grave consequences through its probable cause findings must needs be [sic?] adequate to impose this one too.
Kagan also replies directly to a point made by the Chief in dissent. The second sentence is such a subtle, but effective jab.
The dissent, while conceding this point, notes that courts may con- sider the “weight of the evidence” in deciding whether a defendant has rebutted the presumption. See post, at 9–10, and n. 3 (opinion of ROBERTS, C. J.). And so they may, along with a host of other factors relating to the defendant’s dangerousness or risk of flight. See §3142(g). But that is because the Bail Reform Act so allows—not because (as argued here) the Constitution compels the inquiry. And even that provision of the statute cuts against the dissent’s position, because it enables courts to consider only an evidentiary issue different from the probable cause determination. When it comes to whether probable cause supports a charge—i.e., the issue here—courts making bail determinations are stuck, as all agree, with the grand jury’s finding.
Here, I’m sure Kagan had to resist the urge to say “different umpire.” And the alliteration of “demand a do-over” is fantastic.
And indeed, the alternative rule the Kaleys seek would have strange and destructive consequences. The Kaleys here demand a do-over, except with a different referee. They wish a judge to decide anew the exact question the grand jury has already answered—whether there is prob- able cause to think the Kaleys committed the crimes charged.
Here is the Chief’s intro, which paints the issue in a totally different light:
An individual facing serious criminal charges brought by the United States has little but the Constitution and his attorney standing between him and prison. He might readily give all he owns to defend himself.
We have held, however, that the Government may effectively remove a defendant’s primary weapon of defense—the attorney he selects and trusts—by freezing assets he needs to pay his lawyer. That ruling is not at issue. But today the Court goes further, holding that a defendant may be hobbled in this way without an oppor- tunity to challenge the Government’s decision to freeze those needed assets. I cannot subscribe to that holding and respectfully dissent.
When I was clerking, I worked on a case where the Assistant U.S. Attorney moved to disqualify a defendant’s retained counsel, because he *might* call a witness at trial, and the retained counsel had previously represented the potential witness. On this basis, the Judge granted the motion to disqualify. At this point, presumably, the defendant had paid a lot of money to the lawyer. The defendant, now broke, was stuck with a CJA Panel attorney (and not a good one). This episode left a bad taste in my mouth. The case never went to trial, and the witness was never called. Just another guilty plea.
This paragraph from the Chief speaks to the case I worked on:
It is of course true that the right to counsel of choice is (like most rights) not absolute. A defendant has no right to choose counsel he cannot afford, counsel who is not a member of the bar, or counsel with an impermissible conflict of interest. Wheat v. United States, 486 U. S. 153, 159 (1988). And a district court need not always shuffle its calendar to accommodate a defendant’s preferred coun- sel if it has legitimate reasons not to do so. Morris v. Slappy, 461 U. S. 1, 11–12 (1983). But none of those limitations is imposed at the unreviewable discretion of a prosecutor—the party who wants the defendant to lose at trial.
…
There was good reason for that caution. The possibility that a prosecutor could elect to hamstring his target by preventing him from paying his counsel of choice raises substantial concerns about the fairness of the entire pro- ceeding.
And this:
In any event, few things could do more to “undermine the criminal justice system’s integrity,” ante, at 11, than to allow the Government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice—without even an opportunity to be heard. That is the result of the Court’s decision in this case, and it is fundamentally at odds with our constitutional tradition and basic notions of fair play.
And this ode to criminal defense lawyers, with a subtle jab at the Leviathan U.S. DOJ.
The issues presented here implicate some of the most fundamental precepts underlying the American criminal justice system. A person accused by the United States of committing a crime is presumed innocent until proven guilty beyond a reasonable doubt. But he faces a foe of powerful might and vast resources, intent on seeing him behind bars. That individual has the right to choose the advocate he believes will most ably defend his liberty at trial.
…
Federal prosecutors, when they rise in court, represent the people of the United States. But so do defense lawyers— one at a time. In my view, the Court’s opinion pays insufficient respect to the importance of an independent bar as a check on prosecutorial abuse and government overreaching. Granting the Government the power to take away a defendant’s chosen advocate strikes at the heart of that significant role. I would not do it, and so respectfully dissent.
This is a case right out of 1L Property: couple finds $10 million in gold coins buried in their back yard:
A Northern California couple out walking their dog on their Gold Country property stumbled across a modern-day bonanza: $10 million in rare, mint-condition gold coins buried in the shadow of an old tree.
Nearly all of the 1,427 coins, dating from 1847 to 1894, are in uncirculated, mint condition, said David Hall, co-founder of Professional Coin Grading Service of Santa Ana, which recently authenticated them
Although the face value of the gold pieces only adds up to about $27,000, some of them are so rare that coin experts say they could fetch nearly $1 million apiece.
So is it Finders Keepers?
I am not familiar with California law in particular, so I’ll throw out a few considerations. First, that the couple owns the land is probably helpful, as sometimes there is a dispute between whether the finder or the owner of the land keeps found items. Here, the finders owns the land.
Second, there may be an issue if the gold coins were intentionally buried, or simply lost. If the coins were never circulated, odds are that someone didn’t abandon them accidentally. It is more likely that someone buried the coins, and for whatever reason, never came back for it. I suppose the predecessor-in-interest could state a claim. But that knowledge has likely been lost to the sands of time.
H/T M.M.
The Verge has an insightful article on how the Chicago Police Department is using predictive policing as a means to identify individuals who are likely to be involved in a violent crime–they are placed on the so-called “heat list” and monitored closely.
When the Chicago Police Department sent one of its commanders to Robert McDaniel’s home last summer, the 22-year-old high school dropout was surprised. Though he lived in a neighborhood well-known for bloodshed on its streets, he hadn’t committed a crime or interacted with a police officer recently. And he didn’t have a violent criminal record, nor any gun violations. In August, he incredulously told theChicago Tribune, “I haven’t done nothing that the next kid growing up hadn’t done.” Yet, there stood the female police commander at his front door with a stern message: if you commit any crimes, there will be major consequences. We’re watching you.
What McDaniel didn’t know was that he had been placed on the city’s “heat list” — an index of the roughly 400 people in the city of Chicago supposedly most likely to be involved in violent crime. Inspired by a Yale sociologist’s studies and compiled using an algorithm created by an engineer at the Illinois Institute of Technology, the heat list is just one example of the experiments the CPD is conducting as it attempts to push policing into the 21st century.
Predictive analytical systems have been tested by police departments all over the country for years now, but there’s perhaps no urban police force that’s further along — or better funded — than the CPD in its quest to predict crime before it happens. As Commander Jonathan Lewin, who’s in charge of information technology for the CPD, told The Verge: “This [program] will become a national best practice. This will inform police departments around the country and around the world on how best to utilize predictive policing to solve problems. This is about saving lives.”
While much of the article focuses on the Fourth Amendment, in terms of reasonable expectations of privacy, my curiosity lies in another element of the Fourth Amendment–probable cause.
Can an algorithm augment an officer’s calculation of, or even by itself identify probable cause? In other words, say an officer, by his own knowledge, lacks probable cause to search someone. Could the officer, by relying on an algorithm, acquire specific intelligence to obtain the warrant and conduct the search? Or, more likely, can an algorithm help generate the requisite reasonable suspicion needed for a stop-and-frisk? Can these algorithms operate like virtual drug dogs of sorts, that can trigger further searches?
You can imagine an officer viewing the world through Google Glass,with a status indicator that alerts for probable cause when a match is found, like The Terminator’s Heads-Up Display.
Society should be treading very lightly with these types of programs.
First, I am hesitant to put my faith in an algorithms designed by police departments that can be used to calculate reasonable suspicion or probable cause. Programmers “engaged in the often competitive enterprise of ferreting out crime” should be viewed skeptically–especially if their algorithms are not open-sourced.
Second, in light of the CSI-effect, judges and juries may be more likely to believe an algorithm that can calculate probable cause than a potentially-fallible officer–even though these algorithms may cast a very wide net, and yield many false negatives.
Third, and most troubling, officers equipped with these programs can leverage the algorithms to focus on people already of interest. No doubt, a smart enough computer can gin up reason to search just about anyone. And for reasons 1 and 2, these searches are more likely to be upheld.
Cross-Posted at Law & Liberty.
