Issue 28: “In criminal matters, judicial economy must give way to the demand for the truth”
Plus: Will the Michigan Supreme Court break up with the 'reasonable person'?
What You’ll Read:
Connecticut & Michigan Supreme Courts: Criminal legal systems cannot neglect scientific advancement
The Michigan Supreme Court protects Fourth Amendment rights—and one Justice says the state constitution should go further
ICYMI: The Rhode Island Supreme Court upholds “youth offender parole”
Strict Scrutiny podcast covers state rights against excessive punishment
Vacancies & Elections: The public defenders running for judge in Los Angeles
Connecticut Supreme Court Holds Science-Based Rights Apply Retroactively: “In criminal matters judicial economy must give way to the demand for the truth”
If criminal legal systems are to have any claim to accuracy and fairness, then state courts must ensure they align with modern science—whether by keeping junk forensic science out of courtrooms, prohibiting prosecutors from invoking scientifically-dubious theories of guilt, or banning extreme sentences at odds with the neuroscience on individual culpability and the capacity to change.
In Connecticut, the state supreme court has embraced this role to limit the scourge of mistaken eyewitness identification testimony, which is “by far the leading cause of wrongful convictions.” To this end, the court has both expanded state constitutional due process rights and, just this month, broken from federal precedent to apply those rights retroactively, ensuring that people are not denied justice “just because [they were convicted] ahead of scientific advancements.”
The court previously recognized the “near perfect scientific consensus” that shows “the fallibility of eyewitness identification testimony and pinpoints an array of variables that are most likely to lead to a mistaken identification”—including cross-racial identifications. This is especially true in suggestive settings, such as a courtroom where one Black person stands accused. In 2016, the court held that “any [first-time] in-court identification by a witness who would have been unable to reliably identify [the defendant] in a nonsuggestive out-of-court procedure constitutes a procedural due process violation.” With this holding, the court later explained, “the due process provision of … our state constitution affords greater protection than the federal constitution with respect to the admissibility of eyewitness identification testimony.”
But what of people convicted before 2016? Edgar Tatum was convicted of murder in 1990 based on the testimony of two white witnesses, one of whom admitted to “freebasing cocaine” on the night in question. Both had initially identified someone else as the shooter, but more than a year later they recanted and identified Tatum—the only Black man seated at defense counsel’s table—at his probable cause hearing.
Tatum’s habeas petition asked Connecticut’s high court to apply its science-based constitutional rules to older convictions. The court first looked at the federal test for retroactivity, set forth in a case called Teague v. Lane, which rests on the muddled distinction between “substantive” and “procedural” rules: a new substantive rule of constitutional law will apply retroactively to final convictions, but a new procedural rule will not. The problem is not just that it’s often hard to tell one from the other, but that even clearly procedural rules can decide the accuracy of criminal proceedings. As California Justice Kelli Evans explained in a recent dissent, it makes little sense to be “more concerned about the elusive line between [rules] that are procedural and those that are substantive than whether the previous [rule] may have led to the conviction of innocent people[.]”
In Tatum, the Connecticut Supreme Court agreed. It recognized that Teague, whatever its worth, relied on federalism concerns that do not apply to state courts reviewing state court convictions. It’s a rule more concerned with protecting “finality” than promoting justice. Instead, under the Connecticut Constitution, “a new constitutional rule of criminal procedure must be applied retroactively … if the rule was a result of developments in science that persuaded us to reevaluate fundamental principles underlying judicial procedures, the rule significantly improves the accuracy of a conviction, and the petitioner [previously] advocated for the rule[.]”
“In criminal matters,” the court said, “judicial economy must give way to the demand for the truth,” and had Tatum “made the same claim today that he raised in his direct appeal more than thirty years ago, he would prevail.”
One could argue that this standard is still too strict. Withholding relief unless the petitioner previously asked for the rule is puzzling; it effectively requires defense lawyers and people charged with crimes to predict scientific advancements before they happen. Still, the central point—that no one should be burdened with a conviction or sentence discredited by scientific consensus—is vital. [Full Opinion]
Michigan Supreme Court Overturns “Shaken Baby Syndrome” Conviction
In another win for scientific advancement, the Michigan Supreme Court last week ordered a new trial for a parent convicted of first degree murder on the dubious theory of “shaken baby syndrome,” or “SBS.”
For decades, doctors have blamed unexplained baby injuries on SBS, leading to hundreds of criminal prosecutions against parents and caregivers every year. But last year, a New Jersey appellate court affirmed a ruling that labeled SBS “junk science,” and barred prosecutors from raising the theory in court. “The State has not demonstrated general acceptance of the SBS[] hypothesis to justify its admission in a criminal trial,” the court said. “On the contrary, the evidence amply demonstrates that … biomechanical testing has never proven the premise of SBS, despite the hypothesis being grounded in biomechanical principles.”
In the Michigan case, the original medical examiner recanted his SBS diagnosis and agreed that choking, not shaking, could explain the baby’s death. With that and other new expert testimony, the court ruled that a new trial would likely produce a different outcome:
[A]t retrial, defendant could call Dr. Cassin to testify about his changed opinion regarding Nakita’s cause of death as well as several expert witnesses who would testify that SBS is a questionable diagnosis, that Nakita’s injuries were not consistent with abusive shaking, and who would provide the jury with a potential alternate cause of death. … Taken together, we conclude that defendant has presented enough evidence to demonstrate that a different result on retrial is “probable.”
[Full Opinion | AP]
Michigan Supreme Court Protects Fourth Amendment Rights—Should Its State Constitution Also Dump The ‘Reasonable Person’?
The Michigan Supreme Court this month also decided a pair of Fourth Amendment cases that protect individual rights from police overreach.
In one, People v. Duff, police officers pulled behind a parked car, obstructing its path to leave, before shining a spotlight at the car and approaching it with a flashlight pointed inside. The majority reached the commonsense conclusion that, under these circumstances, a reasonable person inside the parked car would not feel free to leave, and the occupant was therefore “seized” for Fourth Amendment purposes. The court remanded the case to decide if officers could justify this seizure.
More interesting, though, is the concurrence from Justice Elizabeth Welch, which argues that the court should use the state constitutional right against unreasonable searches and seizures—Article 1, Section 11—to craft a more realistic test for deciding when police have “seized” someone. Federal law asks whether a “reasonable person” would feel free to leave or terminate a law enforcement encounter. But as Welch explains, the “idealistic judicial model” of a “reasonable person” does not actually exist in the real world: “empirical studies indicate that most reasonable people would not feel free to leave or disengage in many situations involving law enforcement, despite the United States Supreme Court finding that they would.”
Even if this flawed test persists, Michigan need not follow it. Welch suggests the state constitution as an alternative:
I also find it noteworthy that the [federal] test was adopted years after Michigan’s current Constitution was adopted [in 1963], and thus could not have been considered by the framers or the electorate. An important question remains: would a different test for determining whether a person has been seized be more consistent with Const 1963, art 1, § 11 than the current understanding of the [federal] framework?
It’s Not A Crime To Be In A “High Crime Area”
Using someone’s presence in a “high crime area” to justify detaining and searching them is a hollow police cliche, invoked when there is no better reason, like claiming someone “reached for their waistband” to justify shooting them.
In 2019, police in Kalamazoo, Michigan used an especially suspect version of that when they detained Douglas Prude outside an apartment complex, later saying that he was parked—legally—in a particular area of a parking lot “where criminal activity was common.” Prude declined to identify himself but said that he was visiting his girlfriend who was a resident. When the officers told Prude to wait while they checked for previous trespass warnings, Prude started his car and drove away. The officers eventually arrested Prude and “charged him with second-degree fleeing and eluding and resisting or obstructing a police officer.”
On appeal, the issue was whether police had a particularized suspicion that Prude was committing a crime; if not, then the officers violated his Fourth Amendment rights, the detention was unlawful, and Prude was free to drive away.
In a 5-2 ruling, the Michigan Supreme Court found a Fourth Amendment violation and vacated Prude’s convictions: “As commonsense would indicate, it is generally not trespassing for a nonresident to visit a resident of an apartment complex and to be present in the apartment’s common areas while doing so,” the court said. “That defendant was in an area where other nonresidents had frequently committed crimes did not provide reasonable suspicion that he was engaged in criminal activity[.]” To give the “high crime area” any more weight, the court said, would create “an exception to the Fourth Amendment for all people living in or passing through certain neighborhoods.” [Full Opinion]
ICYMI: Rhode Island Supreme Court Upholds Youth Offender Parole. Under Rhode Island’s 2021 “Mario’s Law,” anyone sentenced for a crime committed before the age of 22 is eligible for parole after serving 20 years. The reform recognized that youth and young adults have both reduced culpability and a greater capacity to change, and therefore consigning them to die in prison, even for terrible crimes, does not serve state interests. But prosecutors and the DOC argued that the reform does not apply to people—including the law’s namesake, Mario Monteiro—serving multiple sentences. Last month the Rhode Island Supreme Court rejected that argument in a 4-1 decision, and ordered the parole board to consider Monteiro’s release. [The Rhode Island ACLU | Full Opinion]
Come For “The Hubris & Hackery of Aileen Cannon,” Stay For Antipunishment Rights. Finally, the popular legal podcast Strict Scrutiny, hosted by the “badass constitutional law professors” Leah Litman, Kate Shaw, and Melissa Murray, recently covered the power and possibilities of state constitutional rights against excessive punishment—and why the ongoing mass incarceration crisis and the U.S. Supreme Court’s failure to do anything about it make this so urgent. I joined Prof. Litman, the Brennan Center’s Kasia Szymborski Wolfkot, and lawyer and journalist Josie Duffy Rice for the discussion. [Strict Scrutiny]
Vacancies & Elections
The movement to put more public defenders on the bench—a major success story of the Biden administration—has gone local. After wins in Louisiana, Montana, and elsewhere, Bolts Mag reports on advocates and a slate of public defender candidates bringing a new approach to Los Angeles courts that’s “more attentive to the pitfalls of incarceration”: “These candidates are running in separate countywide elections. But they’ve delivered similar messages. … Now on the campaign trail, they insist that the job of a judge should be more about finding creative solutions to foster rehabilitation than doling out punishment.” [Bolts Mag]