Justice Connor, in a separate concurring opinion,
also pointed out the nature of the problems that will undoubtedly
arise concerning the invocation of the right of
privacy and the appropriate test to apply:
"The decision today properly leaves unanswered
the question of how far the right to privacy,
in connection with the possession of marijuana,
extends outside the home. Such a determination
can be made only when we are presented with
specific facts against which the individual's
claim of privacy can be measured, as opposed
to the state's assertion of power to control
the possession of marijuana. Under the test
we have employed in determining the scope of
the right to privacy, it is necessary to balance
these conflicting claims and determine, whether
the state's prohibition bears a direct and substantial
relationship to effectuating a legitimate
state interest.
"It is certain that the right to privacy does
not vanish when one leaves the home. There
are certain aspects of personal autonomy
which one carries with him even when he
ventures out of the home, though the claim
to privacy diminishes in proportion to the
extent that one's person and one's activities
impinge upon other persons. But, in order
to trace the contours of the right to privacy,
it will be necessary to engage in a critical
analysis of the facts of each case which presents
itself for decision. Only in this fashion can
the right to privacy, outside the home, be
be determined on a reasoned, coherent
basis so as to furnish the courts and
the public with reliable rules of action.
Much definitional work, therefore, remains
to be done in the cases yet to be determined."
Ravin, 537 P.2d at 516.
Concerning the analysis and observations of Justices
Boochever and Connor, less cannot be said concerning our
duty to interpret out own constitution.
As discussed earlier in this opinion, I am sure there
is nearly universal agreement that the right of privacy
exists in the home if it exists anywhere. The difficult
question is in deciding what kind of activity should be
protected in the home from the intrusions of the State.
Agreement, on this subject seems to depend directly on
whose ox is being gored. Too often we want protection
for what "we" do in the privacy of "our" homes but not
for what "they" do in the privacy of "their" homes. Under
our constitution however, it is the function of this
Court to permit all conduct in the privacy of the home
as long as a countervailing compelling State interest does
not take a higher precedence.
Based on the available evidence as to the lack of
public harm (and, indeed, even the relative lack of harm
to the individual when, compared to the use of alcohol and
perhaps also tobacco), I find no difficulty in determining
that a compelling State interest did not exist for the
police to seize the marijuana plants in the defendant's
home.
I would accordingly, order that the marijuana plants
seized in the defendant's home, be suppressed, and order
that the cause be dismissed.
Monday, June 09, 2008
Neighbor turns evidence over to police
M r . J u s t i c e John Conway Harrison dissenting:
I r e s p e c t f u l l y d i s s e n t . While I recognize t h a t both
the Coburn case and the Brecht case have been p a r t of our
case l a w f o r several years and t h a t a t least one l e g i s l a t u r e
has had the opportunity t o change the law established i n
these opinions, I f e e l now, as I did when I dissented t o
those opinions, t h a t we w e r e e s t a b l i s h i n g bad law.
Here, we have a p r i v a t e c i t i z e n , who i n no way can be
considered an agent of the S t a t e , turning over evidence t o
the S t a t e t h a t she had procured i n an assumed t r e s p a s s on
her neighbors' property. She had no other i n t e r e s t than t o
enforce the law, and her a c t of turning over the evidence t o
the s h e r i f f ' s o f f i c e is d i f f e r e n t from t h a t of H i l l i s i n the
Coburn case, where H i l l i s had a previous agreement with the
police t o g e t the evidence from h i s employee's pocket. I
believe under the f a c t s here Coburn is c l e a r l y d i s t i n g u i s h a b l e .
Prior t o Brecht and Coburn the purpose of the exclusionary
r u l e was t o guarantee t h a t the S t a t e and i t s authorized
representatives would observe an i n d i v i d u a l ' s c o n s t i t u t i o n a l
r i g h t s . The r u l e was t o p r o t e c t t h e individual from i l l e g a l
police a c t i v i t y . It did not encompass i l l e g a l searches by
p r i v a t e individuals; its basic purpose, as s t a t e d above, w a s
t o deter police a c t i v i t y and thereby guarantee the p u r i t y of
t h e j u d i c i a l process. Once we extend the exclusionary r u l e
t o p r i v a t e persons, a s we a r e doing here, said extensions
can and w i l l extend the r u l e beyond any l o g i c a l purpose.
For these reasons I would r e v e r s e t h e D i s t r i c t c o u r t ' s order
of suppression and send the case t o t r i a l .
I r e s p e c t f u l l y d i s s e n t . While I recognize t h a t both
the Coburn case and the Brecht case have been p a r t of our
case l a w f o r several years and t h a t a t least one l e g i s l a t u r e
has had the opportunity t o change the law established i n
these opinions, I f e e l now, as I did when I dissented t o
those opinions, t h a t we w e r e e s t a b l i s h i n g bad law.
Here, we have a p r i v a t e c i t i z e n , who i n no way can be
considered an agent of the S t a t e , turning over evidence t o
the S t a t e t h a t she had procured i n an assumed t r e s p a s s on
her neighbors' property. She had no other i n t e r e s t than t o
enforce the law, and her a c t of turning over the evidence t o
the s h e r i f f ' s o f f i c e is d i f f e r e n t from t h a t of H i l l i s i n the
Coburn case, where H i l l i s had a previous agreement with the
police t o g e t the evidence from h i s employee's pocket. I
believe under the f a c t s here Coburn is c l e a r l y d i s t i n g u i s h a b l e .
Prior t o Brecht and Coburn the purpose of the exclusionary
r u l e was t o guarantee t h a t the S t a t e and i t s authorized
representatives would observe an i n d i v i d u a l ' s c o n s t i t u t i o n a l
r i g h t s . The r u l e was t o p r o t e c t t h e individual from i l l e g a l
police a c t i v i t y . It did not encompass i l l e g a l searches by
p r i v a t e individuals; its basic purpose, as s t a t e d above, w a s
t o deter police a c t i v i t y and thereby guarantee the p u r i t y of
t h e j u d i c i a l process. Once we extend the exclusionary r u l e
t o p r i v a t e persons, a s we a r e doing here, said extensions
can and w i l l extend the r u l e beyond any l o g i c a l purpose.
For these reasons I would r e v e r s e t h e D i s t r i c t c o u r t ' s order
of suppression and send the case t o t r i a l .
Friday, November 02, 2007
No. DA 06-0271
2007 MT 40
STATE OF MONTANA,
v.
GARY GENE FRAZIER, JR.,
ustice John Warner dissents.
¶23 I dissent. The Court’s decision is neither fair to the Justice Court nor justified on
its merits.
¶24 The text of Frazier’s motion to withdraw his guilty plea in the Justice Court is set
out in full at ¶ 15. This Court acknowledges that Frazier did not claim the plea colloquy
was inadequate in this motion.
¶25 Montana law is well established that “it is fundamentally unfair to fault the trial court for
failing to rule on an issue it was never given the opportunity to consider.” State v. J.C., 2004
MT 75, ¶ 45, 320 Mont. 411, ¶ 45, 87 P.3d 501, ¶ 45; State v. Martinez, 2003 MT 65, ¶ 17,
314 Mont. 434, ¶ 17, 67 P.3d 207, ¶ 17. The Court, in ¶ 16, justifies ignoring the law in this
instance by saying: (a) the motion was summarily denied; (b) Frazier’s motion is as descriptive
as the motion in State v. Boucher, 2002 MT 114, 309 Mont. 514, 48 P.3d 21; and (c) when
there is some doubt whether a plea is voluntary the doubt should be resolved in favor of
the defendant, citing Boucher. In my view, none of these reasons are sufficient to justify
the unfair treatment of the Justice of the Peace, nor are they sufficient to reverse the
District Court.
¶26 Neither the Court nor the parties cite any authority which says that it is error to
summarily deny a motion which does not state grounds for relief, based on speculation
that a lawyer may have been able to raise a legitimate issue.2 The motion itself does not
state any legitimate grounds for withdrawal of a guilty plea. Judge Herman was justified
2 Frazier makes no argument that he did not validly waive his right to have counsel at the time
he entered his plea. He makes no argument that he had requested counsel before he made his
motion to dismiss.
9
in denying the motion when he received it two days after the plea was entered. He had
no idea that counsel would later allege in District Court that the guilty plea was
involuntary because he did not ask Frazier to explain what he had done that constituted
the offense. This Court now faults Judge Herman for not ruling on an issue he was never
given the opportunity to consider.
¶27 What the defendant’s motion may have said in Boucher is of no relevance
whatever in this case. In Boucher, this Court did not discuss whether the Justice Court
should have been given the opportunity to consider the true grounds for the motion to
withdraw the guilty plea. Nor do the briefs filed in Boucher even mention, much less
argue, that the established rule of law stated in State v. J.C. should or should not be
applied. Of course, if an issue is not raised this Court will not consider it. State v.
Rodarte, 2002 MT 317, ¶ 15, 313 Mont. 131, ¶ 15, 60 P.3d 983, ¶ 15. It is inappropriate in
this case to cite Boucher as authority for ignoring the rule that the Justice Court should have had
the opportunity to consider the true grounds for Frazier’s motion.
¶28 I have no disagreement with the proposition that when there is some doubt whether a
plea is voluntary, the doubt should be resolved in favor of the defendant. However, I am
of the opinion that it is necessary to raise that doubt initially in the trial court, whether it
is a court of limited jurisdiction or a district court. If it is no longer the rule that an issue
must be presented to the trial court before it is brought to this Court, which is what the
Court seems to say in ¶ 16, the Court should so announce and advise the bar that the
legion of cases to the contrary are overruled.
¶29 Another reason why the Court’s conclusion in this case is unfair to Judge Herman
bears mentioning. There are two justice courts in Yellowstone County and they are not
courts of record. From the transcript of this case we know that these two courts handle
about 15,000 cases a year. Judge Herman candidly admitted that he cannot remember
each case he handles, which is no surprise. Frazier entered his guilty plea on June 27,
2005. Judge Herman was presented with Frazier’s motion to withdraw his plea two days
later on June 29, 2005. The motion was admittedly defective and it was denied that same
day. Judge Herman was called to testify about this case on October 26, 2005, some four
months and hundreds, maybe thousands, of cases later. He could not be expected to and
did not remember this particular case. He was justifiably unable to specifically recall his consideration of this particular motion. He was thus unable to fairly defend this particular decision. Under these circumstances, I do not think Judge Herman should be faulted for denying a motion which does not even state the real grounds upon which it is based.
¶30 The Court’s conclusion that the plea colloquy was inadequate is also flawed. The
record shows that Frazier knew exactly what he was alleged to have done to constitute
the offense when he entered his guilty plea.
¶31 Frazier admitted that he had been in an altercation with his wife the evening before he appeared before the justice court. He knew that he was arrested because she allegedhe assaulted her. He admitted that he received a copy of the notice to appear and the complaint. Frazier also acknowledged that the copy of the complaint contained a 11 description of what he is alicged to have dune to commit the offcnsc of paimer or family niembrr assault.
¶32 Frazier’s counsel stipulated in the District Court that his client can read. Also, any argument that a medical condition caused an involuntary guilty plea was withdrawn in District Court.
¶33 The practice of Judge Herman is to ask each defendant, before a plea of guilty is
accepted, whether they understand that by pleading guilty they admit the facts alleged in the complaint. He also informs each defendant that by pleading guilty they are telling the judge that they are conceding the facts that are in the complaint. Not only did Frazier admit that he had a copy of the complaint set forth above, he did not deny that this procedure was followed when he entered his guilty plea.
¶34 Judge Herman made notes at the time that Frazier pled guilty. These notes, in
pertinent part, state that in this instance Judge Herman went over the charges twice with Frazier. Again, Frazier did not deny that the judge went over the charges, twice, with him.
¶35 I conclude that the record clearly shows that Judge Herman did determine that
there was a factual basis for Frazier’s guilty plea before he accepted it, as required by §
46-12-212(1), MCA.
¶36 I dissent.
/S/ JOHN WARNER
2007 MT 40
STATE OF MONTANA,
v.
GARY GENE FRAZIER, JR.,
ustice John Warner dissents.
¶23 I dissent. The Court’s decision is neither fair to the Justice Court nor justified on
its merits.
¶24 The text of Frazier’s motion to withdraw his guilty plea in the Justice Court is set
out in full at ¶ 15. This Court acknowledges that Frazier did not claim the plea colloquy
was inadequate in this motion.
¶25 Montana law is well established that “it is fundamentally unfair to fault the trial court for
failing to rule on an issue it was never given the opportunity to consider.” State v. J.C., 2004
MT 75, ¶ 45, 320 Mont. 411, ¶ 45, 87 P.3d 501, ¶ 45; State v. Martinez, 2003 MT 65, ¶ 17,
314 Mont. 434, ¶ 17, 67 P.3d 207, ¶ 17. The Court, in ¶ 16, justifies ignoring the law in this
instance by saying: (a) the motion was summarily denied; (b) Frazier’s motion is as descriptive
as the motion in State v. Boucher, 2002 MT 114, 309 Mont. 514, 48 P.3d 21; and (c) when
there is some doubt whether a plea is voluntary the doubt should be resolved in favor of
the defendant, citing Boucher. In my view, none of these reasons are sufficient to justify
the unfair treatment of the Justice of the Peace, nor are they sufficient to reverse the
District Court.
¶26 Neither the Court nor the parties cite any authority which says that it is error to
summarily deny a motion which does not state grounds for relief, based on speculation
that a lawyer may have been able to raise a legitimate issue.2 The motion itself does not
state any legitimate grounds for withdrawal of a guilty plea. Judge Herman was justified
2 Frazier makes no argument that he did not validly waive his right to have counsel at the time
he entered his plea. He makes no argument that he had requested counsel before he made his
motion to dismiss.
9
in denying the motion when he received it two days after the plea was entered. He had
no idea that counsel would later allege in District Court that the guilty plea was
involuntary because he did not ask Frazier to explain what he had done that constituted
the offense. This Court now faults Judge Herman for not ruling on an issue he was never
given the opportunity to consider.
¶27 What the defendant’s motion may have said in Boucher is of no relevance
whatever in this case. In Boucher, this Court did not discuss whether the Justice Court
should have been given the opportunity to consider the true grounds for the motion to
withdraw the guilty plea. Nor do the briefs filed in Boucher even mention, much less
argue, that the established rule of law stated in State v. J.C. should or should not be
applied. Of course, if an issue is not raised this Court will not consider it. State v.
Rodarte, 2002 MT 317, ¶ 15, 313 Mont. 131, ¶ 15, 60 P.3d 983, ¶ 15. It is inappropriate in
this case to cite Boucher as authority for ignoring the rule that the Justice Court should have had
the opportunity to consider the true grounds for Frazier’s motion.
¶28 I have no disagreement with the proposition that when there is some doubt whether a
plea is voluntary, the doubt should be resolved in favor of the defendant. However, I am
of the opinion that it is necessary to raise that doubt initially in the trial court, whether it
is a court of limited jurisdiction or a district court. If it is no longer the rule that an issue
must be presented to the trial court before it is brought to this Court, which is what the
Court seems to say in ¶ 16, the Court should so announce and advise the bar that the
legion of cases to the contrary are overruled.
¶29 Another reason why the Court’s conclusion in this case is unfair to Judge Herman
bears mentioning. There are two justice courts in Yellowstone County and they are not
courts of record. From the transcript of this case we know that these two courts handle
about 15,000 cases a year. Judge Herman candidly admitted that he cannot remember
each case he handles, which is no surprise. Frazier entered his guilty plea on June 27,
2005. Judge Herman was presented with Frazier’s motion to withdraw his plea two days
later on June 29, 2005. The motion was admittedly defective and it was denied that same
day. Judge Herman was called to testify about this case on October 26, 2005, some four
months and hundreds, maybe thousands, of cases later. He could not be expected to and
did not remember this particular case. He was justifiably unable to specifically recall his consideration of this particular motion. He was thus unable to fairly defend this particular decision. Under these circumstances, I do not think Judge Herman should be faulted for denying a motion which does not even state the real grounds upon which it is based.
¶30 The Court’s conclusion that the plea colloquy was inadequate is also flawed. The
record shows that Frazier knew exactly what he was alleged to have done to constitute
the offense when he entered his guilty plea.
¶31 Frazier admitted that he had been in an altercation with his wife the evening before he appeared before the justice court. He knew that he was arrested because she allegedhe assaulted her. He admitted that he received a copy of the notice to appear and the complaint. Frazier also acknowledged that the copy of the complaint contained a 11 description of what he is alicged to have dune to commit the offcnsc of paimer or family niembrr assault.
¶32 Frazier’s counsel stipulated in the District Court that his client can read. Also, any argument that a medical condition caused an involuntary guilty plea was withdrawn in District Court.
¶33 The practice of Judge Herman is to ask each defendant, before a plea of guilty is
accepted, whether they understand that by pleading guilty they admit the facts alleged in the complaint. He also informs each defendant that by pleading guilty they are telling the judge that they are conceding the facts that are in the complaint. Not only did Frazier admit that he had a copy of the complaint set forth above, he did not deny that this procedure was followed when he entered his guilty plea.
¶34 Judge Herman made notes at the time that Frazier pled guilty. These notes, in
pertinent part, state that in this instance Judge Herman went over the charges twice with Frazier. Again, Frazier did not deny that the judge went over the charges, twice, with him.
¶35 I conclude that the record clearly shows that Judge Herman did determine that
there was a factual basis for Frazier’s guilty plea before he accepted it, as required by §
46-12-212(1), MCA.
¶36 I dissent.
/S/ JOHN WARNER
Wednesday, May 30, 2007
I despair about the future of our constitutional rights
US v. Black, 482 F,3d 1044 (9th Cir. 2007)
KOZINSKI, Circuit Judge, with whom Judges REINHARDT,
KLEINFELD and BERZON join, dissenting from the order
denying the petition for rehearing en banc:
Once upon a time in the West there was a special place called
home. Solemn pronouncements from our nation’s highest
court, and our own court, protected it from warrantless police
intrusions. “With few exceptions,” the Supreme Court held,
“the question whether a warrantless search of a home is reasonable
and hence constitutional must be answered no.” Kyllov. United States, 533 U.S. 27, 31 (2001). Such searches weredeemed “presumptively unreasonable.” Payton v. New York,
445 U.S. 573, 586 (1980). We held that the “governmentbears a heavy burden of demonstrating that exceptional circumstancesjustified departure from the warrant requirement.
The burden [could not] be satisfied by speculation about what
may or might have happened.” United States v. Howard, 828
F.2d 552, 555 (9th Cir. 1987) (emphasis added) (quoting
United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985)).
Police who entered the home without a valid warrant could be
held personally liable. Groh v. Ramirez, 540 U.S. 551, 563-65
(2004).
That special place is no more. The rules haven’t changed,
at least not on paper. But legal rules are only as good as their
last application. The panel majority dutifully recites the right
standard, but guts it of all meaning by approving an intrusion
into the home that does not remotely satisfy it. If the justification
here satisfies the government’s “heavy burden” to show
non-speculative “exceptional circumstances,” it’s hard to
imagine how we can keep the police from barging into any
home anytime they please.
The majority gives the government a pass because “the exigencies
of domestic abuse cases present dangers that, in an
appropriate case, may override considerations of privacy.”
Maj. op. at 3969 (quoting United States v. Brooks, 367 F.3d
1128, 1136 (9th Cir. 2004)). The problem with this approach
is that the government has any number of such crises-du-jour:
terrorism, child pornography, child abuse, drugs, hate crimes
—the list is endless. When confronted with such serious
crimes, it is the job of the police to be suspicious; the job of
the courts is to insist that police develop evidence supporting
these suspicions before they defile the sanctity of the home.
In a particularly disturbing passage, the panel majority
opines that “[e]rring on the side of caution is exactly what we
expect of conscientious police officers.” Maj. op. at 3969.
This is entirely backwards when the cautious error involves
invasion of the home. In such circumstances, we expect police
to err on the other side of caution by staying out unless and
until they obtain a warrant or satisfy the demanding constitutional
standard for a warrantless search. The majority’s unfortunate
phrase will be widely seen as a green light for the
police to “err on the side of caution” by breaking into people’s
homes based on half-baked suspicions.
When a panel of our court can find that the facts here satisfy
the government’s “heavy burden” for invading the home
without a warrant, I despair about the future of our constitutional
rights. If the right accorded the greatest protection by
the Fourth Amendment—the right to privacy of the home—
can be so casually brushed aside, no right is safe. Because my
colleagues do not similarly view this issue as one of exceptional
importance, I sorrowfully dissent.
KOZINSKI, Circuit Judge, with whom Judges REINHARDT,
KLEINFELD and BERZON join, dissenting from the order
denying the petition for rehearing en banc:
Once upon a time in the West there was a special place called
home. Solemn pronouncements from our nation’s highest
court, and our own court, protected it from warrantless police
intrusions. “With few exceptions,” the Supreme Court held,
“the question whether a warrantless search of a home is reasonable
and hence constitutional must be answered no.” Kyllov. United States, 533 U.S. 27, 31 (2001). Such searches weredeemed “presumptively unreasonable.” Payton v. New York,
445 U.S. 573, 586 (1980). We held that the “governmentbears a heavy burden of demonstrating that exceptional circumstancesjustified departure from the warrant requirement.
The burden [could not] be satisfied by speculation about what
may or might have happened.” United States v. Howard, 828
F.2d 552, 555 (9th Cir. 1987) (emphasis added) (quoting
United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985)).
Police who entered the home without a valid warrant could be
held personally liable. Groh v. Ramirez, 540 U.S. 551, 563-65
(2004).
That special place is no more. The rules haven’t changed,
at least not on paper. But legal rules are only as good as their
last application. The panel majority dutifully recites the right
standard, but guts it of all meaning by approving an intrusion
into the home that does not remotely satisfy it. If the justification
here satisfies the government’s “heavy burden” to show
non-speculative “exceptional circumstances,” it’s hard to
imagine how we can keep the police from barging into any
home anytime they please.
The majority gives the government a pass because “the exigencies
of domestic abuse cases present dangers that, in an
appropriate case, may override considerations of privacy.”
Maj. op. at 3969 (quoting United States v. Brooks, 367 F.3d
1128, 1136 (9th Cir. 2004)). The problem with this approach
is that the government has any number of such crises-du-jour:
terrorism, child pornography, child abuse, drugs, hate crimes
—the list is endless. When confronted with such serious
crimes, it is the job of the police to be suspicious; the job of
the courts is to insist that police develop evidence supporting
these suspicions before they defile the sanctity of the home.
In a particularly disturbing passage, the panel majority
opines that “[e]rring on the side of caution is exactly what we
expect of conscientious police officers.” Maj. op. at 3969.
This is entirely backwards when the cautious error involves
invasion of the home. In such circumstances, we expect police
to err on the other side of caution by staying out unless and
until they obtain a warrant or satisfy the demanding constitutional
standard for a warrantless search. The majority’s unfortunate
phrase will be widely seen as a green light for the
police to “err on the side of caution” by breaking into people’s
homes based on half-baked suspicions.
When a panel of our court can find that the facts here satisfy
the government’s “heavy burden” for invading the home
without a warrant, I despair about the future of our constitutional
rights. If the right accorded the greatest protection by
the Fourth Amendment—the right to privacy of the home—
can be so casually brushed aside, no right is safe. Because my
colleagues do not similarly view this issue as one of exceptional
importance, I sorrowfully dissent.
Monday, May 07, 2007
dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing
The Court today sets forth a per se rule that presumes its own version of the facts: "A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death." Ante, at 13 (emphasis added). Not only does that rule fly in the face of the flexible and case-by-case "reasonableness" approach applied in Garner and Graham v. Connor, 490 U. S. 386 (1989), but it is also arguably inapplicable to the case at hand, given that it is not clear that this chase threatened the life of any "innocent bystande[r]."8 In my view, the risks inherent in justifying unwarranted police conduct on the basis of unfounded assumptions are unacceptable, particularly when less drastic measures--in this case, the use of stop sticks9 or a simple warning issued from a loudspeaker--could have avoided such a tragic result. In my judgment, jurors in Georgia should be allowed to evaluate the reasonableness of the decision to ram respondent's speeding vehicle in a manner that created an obvious risk of death and has in fact made him a quadriplegic at the age of 19.
I respectfully dissent.
I respectfully dissent.
Sunday, March 11, 2007
Miranda v. az dissent
HARLAN, J., Dissenting Opinion
SUPREME COURT OF THE UNITED STATES
384 U.S. 436
Miranda v. Arizona
CERTIORARI TO THE SUPREME COURT OF ARIZONA
No. 759 Argued: February 28-March 1, 1966 --- Decided: June 13, 1966 [*]
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART and MR. JUSTICE WHITE join, dissenting.
I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large. How serious these consequences may prove to be, only time can tell. But the basic flaws in the Court's justification seem to me readily apparent now, once all sides of the problem are considered.
SUPREME COURT OF THE UNITED STATES
384 U.S. 436
Miranda v. Arizona
CERTIORARI TO THE SUPREME COURT OF ARIZONA
No. 759 Argued: February 28-March 1, 1966 --- Decided: June 13, 1966 [*]
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART and MR. JUSTICE WHITE join, dissenting.
I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large. How serious these consequences may prove to be, only time can tell. But the basic flaws in the Court's justification seem to me readily apparent now, once all sides of the problem are considered.
By giving literally unprecedented meaning to the words in two relevant statutes, and overruling the premise of Congress’s enactment, the Court adds ne
Scalia, J., dissenting
ARNOLD F. HOHN, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
[June 15, 1998]
Justice Scalia, with whom The Chief Justice, Justice O’Connor, and Justice Thomas join, dissenting.
Today’s opinion permits review where Congress, with unmistakable clarity, has denied it. To reach this result, the Court ignores the obvious intent of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. 104—132, 110 Stat. 1214, distorts the meaning of our own jurisdictional statute, 28 U.S.C. § 1254(1), and overrules a 53-year-old precedent, House v. Mayo, 324 U.S. 42 (1945) (per curiam). I respectfully dissent.
This Court’s jurisdiction under 28 U.S.C. § 1254(1) is limited to “[c]ases in the courts of appeals.” Section 102 of AEDPA provides that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from . . . the final order in a habeas corpus proceeding under section 2255,” that is, a district court habeas proceeding challenging federal custody. Petitioner, who is challenging federal custody under 28 U.S.C. § 2255 did not obtain a certificate of appealability (COA). By the plain language of AEDPA, his appeal “from” the district court’s “final order” “may not be taken to the court of appeals.” Because it could not be taken to the Court of Appeals, it quite obviously was never in the Court of Appeals; and because it was never in the Court of Appeals, we lack jurisdiction under §1254(1) to entertain it.
The purpose of AEDPA is not obscure. It was to eliminate the interminable delays in the execution of state and federal criminal sentences, and the shameful overloading of our federal criminal justice system, produced by various aspects of this Court’s habeas corpus jurisprudence. And the purpose of the specific provision of AEDPA at issue here is also not obscure: It was designed, in intelligent reliance upon a holding of this Court, to end §2255 litigation in the district court unless a court of appeals judge or the circuit justice finds reasonable basis to appeal. By giving literally unprecedented meaning to the words in two relevant statutes, and overruling the premise of Congress’s enactment, the Court adds new, Byzantine detail to a habeas corpus scheme Congress meant to streamline and simplify. I respectfully dissent.
Saturday, March 10, 2007
I turn now to the Court's asserted reliance on the Fifth Amendment, an approach which I frankly regard as a tromp l'oeil. The Court's opinion, in my v
Miranda v. Arizona
CERTIORARI TO THE SUPREME COURT OF ARIZONA
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART and MR. JUSTICE WHITE join, dissenting.
I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large. How serious these consequences may prove to be, only time can tell. But the basic flaws in the Court's justification seem to me readily apparent now, once all sides of the problem are considered.
I turn now to the Court's asserted reliance on the Fifth Amendment, an approach which I frankly regard as a tromp l'oeil. The Court's opinion, in my view, reveals no adequate basis for extending the Fifth Amendment's privilege against self-incrimination to the police station.This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.
1. My discussion in this opinion is directed to the main questions decided by the Court and necessary to its decision; in ignoring some of the collateral points, I do not mean to imply agreement.
Tuesday, March 06, 2007
A rule that allows the State to foist a murder victim’s lawyer onto his accused is not only capricious; it poisons the integrity of our adversary syst
WALTER MICKENS, Jr., PETITIONER v.
JOHN TAYLOR, WARDEN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT [March 27, 2002 Justice Stevens, dissenting.
This case raises three uniquely important questions about a fundamental component of our criminal justice system–the constitutional right of a person accused of a capital offense to have the effective assistance of counsel for his defense.1 The first is whether a capital defendant’s attorney has a duty to disclose that he was representing the defendant’s alleged victim at the time of the murder. Second, is whether, assuming disclosure of the prior representation, the capital defendant has a right to refuse the appointment of the conflicted attorney. Third, is whether the trial judge, who knows or should know of such prior representation, has a duty to obtain the defendant’s consent before appointing that lawyer to represent him.Finally, “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14 (1954). Setting aside Mickens’ conviction is the only remedy that can maintain public confidence in the fairness of the procedures employed in capital cases. Death is a different kind of punishment from any other that may be imposed in this country. “From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” Gardner v. Florida, 430 U.S. 349, 357—358 (1977). A rule that allows the State to foist a murder victim’s lawyer onto his accused is not only capricious; it poisons the integrity of our adversary system of justice.
I respectfully dissent.
Miranda v. Arizona DISSENT
Miranda v. Arizona
CERTIORARI TO THE SUPREME COURT OF ARIZONA
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART and MR. JUSTICE WHITE join, dissenting.
I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large. How serious these consequences may prove to be, only time can tell. But the basic flaws in the Court's justification seem to me readily apparent now, once all sides of the problem are considered.
Power, not reason, is the new currency of this Court's deci- sionmaking
TYRONE PAYNE, PETITIONER v.TENNESSEE
[
Justice Marshall, with whom Justice Blackmun joins, dissenting.
Power, not reason, is the new currency of this Court's deci- sionmaking. Four Terms ago, a five-Justice majority of this Court held that "victim impact" evidence of the type at issue in this case could not constitutionally be introduced during the penalty phase of a capital trial. Booth v. Maryland, 482 U.S. 496 (1987). By another 5-4 vote, a majority of this Court rebuffed an attack upon this ruling just two Terms ago. South Carolina v. Gathers, 490 U.S. 805 (1989). Nevertheless, having expressly invited respondent to renew the attack, 498 U. S. --- (1991), today's majority overrules Booth and Gathers and credits the dissenting views ex- pressed in those cases. Neither the law nor the facts sup- porting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did.
Subscribe to:
Posts (Atom)