The Right to Turn Around

Facts.

For no specified reason, patrolling officers Lunge and Escoria decided to drive into an apartment complex parking lot where they observed defendant and two other men standing next to a Mercedes parked under a covered stall in the rear of the complex. As the officer's unmarked vehicle approached, the men dispersed. Defendant walked around the perimeter fence and into an adjacent open field where he was apprehended shortly thereafter. 

Upon being detained, appellant duly informed the police that he was under a probationary search condition. No keys to the car were found on him, on the others or in the area around the car.   However, based on defendant's search condition, Lang decided to search the Mercedes. Inside the unlocked car, the police observed and then retrieved a gun box containing a .45 calibre gun with magazine clips. They also retrieved 107 grams of marijuana. 

At trial, defendant moved to suppress the evidence on the ground that his detention violated the Fourth Amendment. At the hearing the police testified that they had not received any reports of presently occurring crime and that, on driving into the complex, they had no reason to suspect defendant of anything. However, according to Lunge the men “appeared to be shocked that we were there and they just kind of started stepping away from the vehicle a little bit.”  Appellant “rapidly walked towards the rear of his vehicle and then went around the corner of the parking stall which ha[d] a side wall on it.” Lange could point to no criminality taking place. He testified, however, that he was “struck” by the fact that the car “had no license plates [sic] on it.” He also noticed that “the vehicle was parked a little odd. It was parked between two different parking stalls, not properly parked in one stall as if you were a resident you would park in a single stall.”

The trial court upheld the search ruling that the police had a reasonable suspicion to detain appellant. The court relied on three found factors: (1) the apartment complex qualified as a high crime area; (2) the vehicle was not parked correctly; and (3) appellant walked away briskly These factors, the court ruled, warranted the police to “at least stop and ask and make a determination what if anything or if nothing is going on in this area.” 

Issue:    Did Defendant's so called “flight” from the officers comprise a justifiable reason for detaining him?

 Argument:   No.

Lange's detention of appellant was without legal cause because he failed to articulate any facts amounting to a reasonable suspicion of possible criminality afoot as set forth in Terry v. Ohio (1968) 392 U. S. 1

1.    Lange had failed to articulate facts which would support his conclusory characterization of  the complex as a “high crime area.”  According to Lange,  in his 14 years of patrolling he had been in the complex “no less than 10 times” by which he must be understood to have meant a some few number of times.  Ten times in 14 years amounts to 0.0019% of Lange's professional career and was an insufficient basis on which to draw any reliable conclusions as to the crime characteristics of the complex.
 

 2.    Assuming for the sake of argument that the complex was in fact a “high crime area” , “a 'high crime area' factor is not an 'activity' of an individual.” (People v. Bower (1979) 24 Cal.3d 638, 645.)  Under caselaw the “high crime area factor” is given weight when a location's reputation for a specific type of criminality is matched with similar, specific conduct by the person who thereby becomes suspect.  Otherwise,  "mere presence in a high crime area is not, standing alone, 'sufficient to justify interference with an otherwise innocent-appearing citizen ....'” (Illinois v. Wardlow (2000) 528 U.S. 119, 124.)

 3.    The salient fact of the case was that no criminally suspicious activity was observed.    “An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.  (United States v Cortez, supra, 449 U. S.,  at p. 417.)   But  Lunge admitted that he pulled into the complex simply “to take a look around.”  Once looking around, he supposedly noticed missing plates on a badly parked car.  {coff}  Putting aside whether Lange could have actually have noticed that both  license plates were missing when he approached the parked vehicle from the rear,  the legal fact remains that Veh. Code, section  5200, subd. (a) [requiring plates] only applies to  vehicles “while being operated” or held for sale. (Veh. Code, § 5202, subd. (a).)   There was no evidence that the vehicle was being held for sale and it obviously was not being operated.   There was therefore no objective factual basis for a detention based on an evident illegality (Whren v. United States (1996) 517 U.S. 806, 813.)

 4.    Given the dirth of specific, articulated facts to support a reasonable inference of suspect behavior, the sole remaining basis for defendant’s detention was his so-called “flight” upon seeing officer's unmarked vehicle.    Consistent with established  Terry principles,  the California Supreme Court has held that furtive behavior can be “a key factor-in determining whether in a particular case the police have sufficient cause to detain.”  (People v. Souza (1994), 9 Cal.4th 224, 235.)  However,  Souza  specifically rejected the claim that “a person's evasion of police by running away or by driving away is, regardless of the surrounding circumstances, sufficient to draw an inference of criminal activity on the part of the fleeing person.” (Id, at p. 238.)

 5.    Last but not least, it is (supposedly) settled that, absent an order to the contrary, individuals have a constitutional  right to "to disregard the police and go about his business,"   (Florida v. Bostick (1991) 501 U.S. 429, 434   California v. Hodari D., 499 U.S. 621, 628.)   To detain defendant because he walked away punished him for his exercise of a constitutional right.

Court of Appeal

The Court of Appeal rejected appellant's arguments, holding that  “Defendant was in a high-crime area known for stolen cars, gang activity and shootings, and fled the area after making eye contact with the officers.    The combination of these same characteristics was sufficient to support a reasonable suspicion of criminal activity in Illinois v. Wardlow. (Illinois v. Wardlow, supra, 528 U.S. at p. 124 [“In this case, moreover, it was not merely respondent’s presence in an area of heavy narcotics trafficking that aroused the officers’ suspicion, but his unprovoked flight upon noticing the police”].)”

The court of appeal, added,   “It is a matter of common knowledge that automobile thieves often switch license plates from one car to another in order to conceal the identity of the stolen vehicle.” (People v. Galceran (1960) 178 Cal.App.2d 312, 316.)”

Critique

The appellate court was wrong.  Galceran involved an operated car whose produced registration did not match the plates.  In this case there was no evidence of possible switching.   Moreover Lange never  testified that he suspected the vehicle was stolen.  It is not reasonably possible  to uphold a suspicion which did not arise.

The appellate court was also wrong to state that such a “combination” of factors was relied upon in Wardlow.   Wardlow did not involve any indicia of stolen cars, gangs, shootings, drugs, prostitution, burglaries or whatever.  It involved the single factor of flight in a summarily designated “high crime area” (whatever that might specifically referred to).

Nevertheless, it is difficult to criticise the Court of Appeal's decision inasmuch as – putting aside static at the edges – it was a straightforward application of Wardlow's rule. Rather a criticism of disgust has to be registered against the Supreme Court's subversion of the Fourth Amendment and its perversion of the English language.  Wardlow is the culmination of Rehnquist, C.J.'s fetid, cancerous juriscrudence.

The rotten denouement of the Court's deconstruction of the Fourth Amendment is that, while a citizen has a supposed  right to disengage from an encounter with the police, the police can use that fact as a suspicious circumstance on which to detain him.   (In factual reality, they can also use “that fact” as grounds to gun him down.  No murmuring will be heard from the bench. )

The decision in Wardlow contained two components: (1) the basis for a police approach and (2) the right of the individual to desist from that approach. 

Background

Early American decisions both before and immediately after Independence held that common rumor or report, suspicion, or even strong reason to suspect was not adequate to support a warrant for arrest.   Henry v United States  (1959)  361 U.S. 98, 102.  Little distinction was drawn between an “arrest” and a “detention;”  after all, the words mean the same thing.   If  a person was “stopped from going on his way”  he was “seized” for purposes of the Fourth Amendment.  For near two hundred years after the adoption of the Constitution, police officers were permitted to effect arrests or searches without warrants only “when the facts within their personal knowledge would satisfy the constitutional standard of probable cause.”  (Terry v. Ohio, supra, 392 U. S. 1    [Douglas, J., dissenting].)

Probable cause meant  facts and circumstances which were sufficient (and sufficiently) reliable to warrant a prudent man in believing that the person in question had committed or was committing an offense.  (Brinegar v. United States (1949) 338 U.S. 160, 175-176.) Probable cause did not require proof beyond doubt but rather (as the word probable might indicate to a reasonable jurist) information and evidence preponderating toward a conclusion of guilt.  In all events, it was something more than a “mere suspicion”

In 1968, the “liberal” Warren Court, rewrote the Fourth Amendment, ruling that a person could be “temporarily detained” for further “investigation” on “reasonable suspicion” that he was committing or was about to commit a crime.  In  Terry v. Ohio, the court held that held was that, having approached three Negro boys who were acting “suspiciously” on a street corner, Officer McFadden could lay hands on them, spin them around and — for his personal safety only — search them for “possibly” or “assumedly” carrying weapons.  (There were no facts whatsoever indicating that any of the boys were carrying a weapon, although in the event Terry was.)

In companion cases and ensuing cases, the Court affirmed in a variety of factual  contexts “that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” (Adams v. Williams (1972) 407 U.S. 143, citing Terry at p. 22.)  He may do so, without probable cause, provided he can  point to specific and articulable facts which, taken together with rational inferences from those facts give rise to a suspicion that the individual is involved in criminal activity.   (United States v. Brignoni-Ponce (1975) 422 U.S. 873, 881-882; Brown v. Texas (1979)  443 U.S. 47, 51.)

Eight years later, the Court lowered the bar below zero by announcing that “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.”   (Florida v. Royer (1983) 460 U.S. 491.)  Nor, said Royer,  would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification.  (Citing United States v. Mendenhall, 446 U.S. 544, 555 (1980) (opinion of Stewart, J.). )

Since this was exactly what Officer McFadden had done in Terry (“ approached the three men, identified  himself as a police officer and asked for their names”), the Court had to come up with some bullshit to cover up the trashing of the Fourth Amendment and gave miscarriage to the consensual encounter doctrine, viz:

The person approached, however, “need not answer any question put to him; indeed, he may decline to listen to the questions at all, and may go on his way.”  [Citing Terry]  He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. [Citing . Mendenhall].  But,  If there is no detention ... then no constitutional rights have been infringed. “ (Royer, [460 U.S. 498];  Florida v. Rodriguez, (1984) 469 U.S. 1, 5-6. [initial contact between the officers and respondent, where they simply asked if he would step aside and talk with them, was clearly the sort of consensual encounter that implicates  no Fourth Amendment interest.'].)

“Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions.  So long as a reasonable person would feel free "to disregard the police and go about his business," (California v. Hodari D., (1991) 499 U.S. 621, 628 , the encounter is consensual, and no reasonable suspicion is required.  The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.” (Florida v. Bostick (1991) 501 U.S. 429 [“free to go” even when seated next to window on bus].)

[How the Supreme Court Gutted the Fourth]

In Illinois v Wardlow Kafkaesque Irreality became the Orwellian Nightmare.   In that case, the police, in an unmarked vehicle, were patrolling a “high crime area” known for narcotics dealing.  They noticed defendant standing and holding an “opaque bag.”  The defendant looked at them and ran away.  The police gave chase and ultimately apprehended him.   The Illinois Supreme Court ruled that the police had lacked even a reasonable suspicion under Terry.  Rehnquist, for the majority, reversed.

“An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.”  However, “unprovoked” and “[h]eadlong flight -- wherever it occurs -- is the consummate act of evasion” which is “is certainly suggestive” of wrongdoing."

Thus while the police are “free” to approach you without any reason at all, if you exercise your right not to engage in a consensual encounter, that fact can be used to detain you.  At this point, we must leave “law” and turn to “language.”  Bad language makes for bad law and the Supreme Court's English is atrocious.

The word “flight” denotes “the act of running away, to escape or from expected evil; hasty departure.”  (Webster's Revised Unabridged Dictionary (1913)  p. 570 [italics added].) The word “evade” [from e (away) + vadere (go)] means “the act of avoiding somebody or of avoiding something that you are supposed to do”  from e (out/away)+vadere  (to go)   In other words,  the cornerstone of Rehnquist's ruling was a redundancy  which ignored the true meaning of words.

The significance of flight – when it occurs – is that it evinces an apprehension of danger and – when the danger consists in getting caught in wrongdoing – it reflects a consciousness of guilt. (People v. Mason (1991) 52 Cal.3d, 909, 943)    The word flight is not a description but an inference drawn from facts and circumstances as to  a given person's state of mind.   What a person does in any given case is to run, walk, skip, amble, shuffle, skulk, slouch, in a direction away from some other point.  The word flight expresses a conclusion as to why he does so.  An inference of flight   “is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.” (People v. Ray (1996) 13 Cal.4th 313,345.)

However, Wardlow itself previously stated that presence in a high crime area was not in itself suggestive of criminality and the majority opinion never once mentioned any other fact or circumstance from which a pre-existing or predicate supposition of wrongdoing might be inferred.

In Sibron v. New York (1969) 392 U.S. 40 – the companion case to Terry – the court itself stated that  “deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors   to be considered in the decision to make an arrest.”(Id., at p 66.)

In Wardlow there was no coupling.  Rehnquist simply seized on the ambiguous usage of “flight” to make it, in and of itself, a sufficient justification for a detention.   But in and of itself “flight” in the sense of running away means nothing.  The majority in Wardlow understood that fact  which is why they packaged emptiness with meaningless rhetorical embellishments like “headlong” and “unprovoked.”

What on God's earth does “unprovoked” mean?  Clearly, Winslow's running away was triggered by the cops' presence.  If that was “unprovoked” then did the Chief Smudgist mean to say that it would have been less suggestive of guilt if Wardlow had waited until the cops laid a hand on him  and then “evaded”?   This sort of embellishing is just garbage.

Just as much garbage was the judicial huffing and puffing about “headlong” flight.  It is a regrettable fact of Anglo-American jurisprudence that judges putty up their leaky thinking with high sounding homiletics more suitable to Bible thumpers and Puritan snits.  Two hundred years ago they gave us “willful and wanton malice aforethought with a depraved and malignant heart” as an inexhaustible conundrum to tax, vex and delight the legal profession.

One could very well distinguish the present case from Wardlow on the basis that here there was no headlong flight but merely an ordinary walking away.  By doing so, one could initiate a cascade of judicial literature on the contours of headlongness in the Fourth Amendment context.   But  in constitutional substance there is no difference between this case and Wardlow;  either walking away justifies being detained or it doesn't

It is here that one comes against the appalling signficance and insidious deceit of Wardlow.

“[h]eadlong flight -- wherever it occurs -- is the consummate act of evasion” which is “is certainly suggestive” of wrongdoing." 

In so writing, the Chief Smudger displayed his consumate artifice:  the true lie

It is absolutely correct to say that when  properly so-called “flight” occurs it is certainly suggestive of wrongdoing.  It is equally true that if it is suggestive of wrongdoing it is immaterial where it occurs. Flight down the cathedral nave is still flight.   But if that is the case, the fact that Wardlow's flight occurred in a “high crime area” was irrelevant.  The “high crime area” was just another embellishment for effect.  Pixie dust in your eye.

Of course, a high crime area is not irrelevant.  It casts a certain light on conduct which would otherwise be innocuous.  It is one of the factors from which one can deduced that the running or walking away is a guilty-minded flight.  What Rehnquist was doing was stirring up a brew of ambiguities, tautologies and redundancies out of which to metamorphose a rule that made any act of distancing or disengaging from the police a basis for detention.

As explained, the Court had previously held  that we are not obligated to stop and stand in place when “approached” by a cop.  We  are free to leave unless by a show of authority we are commanded to stay.    According to Royer a person  “may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds.” (Royer, supra, at p. 498 [italics added].)   There was no show of authority in Wardlow.  The police were in an unmarked car. Even had the car be marked, the Court in its wisdom has also held that “merely” wearing a badge and carrying a gun is not a commanding show of authority such as deprives us of our freedom to ignore the police and go about our business unimpeded. 

Thus, if the defendant in Wardlow was supposed to remain put upon coming into police view, he was detained.    If he could not be detained even for a moment, then he was free to leave. Rehnquist was quite aware of the contradiction.  Here is how he dealt with it.

“But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not "going about one's business"; in fact, it is just the opposite. Allowing officers confronted [sic] with such flight to stop the fugitive and investigate further is quite consistent with the individual's right to go about his business or to stay put and remain silent in the face of police questioning.”

Where did “stay put and remain silent”  come from?  Nothing in the Court's disgraceful jurisprudence had ever gone so far as to state that the citizen must “stay put” and “remain silent” during a supposedly consensual encounter. None of the Court's previous cases talked about a right (oh quoth!) to “stay put.”   What Rehnquist did was to insinuate a gloss on the rule to  be picked up and turned into a holding a later date

Rehnquist ever the underhanded spewing sack of shit that he was, knew perfectly well that the phrase “to go about one's business” was an expression denoting what Justice Brandeis called, the “right to be left alone.”   In turning the phrase inside out to do the work of “left off doing whatever guilty stuff he was up to”  Rehnquist simply begged the question and foisted on Mr. Wardlow a presumption of guilt.

Wardlow effected yet another perversion to a jurisprudence which is a compendium of perversions:  while the police can “approach” you for “no reason” you can only depart if you can show that you are going about your business; in other words prove that you are doing something innocent and not guilty. 

It was said of National Socialist law that the question became not what was prohibited but what was allowed.  That point was reached in Wardlow.   In Wardlow, Terry devoured itself.   The police need no reason to “approach” and ask questions but, even though they have no reasonable grounds to detain you, you must have the right to remain silent, while “staying put.”  Given the appalling wretchedness of Wardlow, the California Court of Appeal can hardly be blamed for following the instructions, which are... 

 DON'T TURN AROUND

An Essence of Excrescence

We had a case which speaks for volumes on the hypocritcal depravity of the U.S. justice system.  The case involved some interesting legal issues which we will have occasion to write about elsewhere.  For present purposes it suffices to say that, at trial, defendant was charged with impermissibly carrying a gun and with making threats while he sat under arrest in a police vehicle.  Both charges were based on hearsay evidence; viz: “I was told he had a gun” and “I heard him say ‘he was gonna get them.”  Defendant was acquitted of the threat charge but convicted of possessing a gun.

On appeal, defendant argued that his conviction of gun possession was based on impermissible hearsay which deprived him of his constitutional right to “confront” his accusers — in this case, whoever it was who had told the trial witness that he had a gun. 

The Attorney General filed an answer brief arguing at length that the threat statements were properly admitted.  Defendant filed a reply brief stating that he had not appealed his acquittal and that the issues raised concerned the first hearsay statement.

The appellate court affirmed the judgement ruling that the threat statements had been properly admitted and that there was “sufficient evidence” of defendant’s gun possession.

Defendant filed a petition for rehearing requesting the appellate court to please address the issue he had appealed.  With an unmistakably clear “fuck you,” The petition was denied. 

A petition for review by the state high court was also denied.

Comment

What the case shows is not that appeal courts scratch all corners of the chicken coop to come up with some flimsy grist with which to keep people locked up at all costs.

What the case illustrates is that the courts do not even bother reading defendant’s appellate contentions.  Their justices clerks get the briefs, read the Attorney General’s brief and then write a draft affirming the decision based on the States’ pleadings.

We have often suspected as much, but never was the muck in the pond so clear.

What the Constitution Guarantees

The People's contentions on appeal are always a variant on a sufficiency of the evidence argument coupled with the cliché that "The constitution guarantees a fair trial not a perfect one" to which the answer is that the constitution guarantees a process not an outcome.

 

testing

blah blah balh balh

Rot from the Sepulchre

Once again the American criminal justice system parades its wretched excrescences before the world.  It was reported yesterday that DNA evidence cleared two black men of a rape and murder which they did not commit and for which they spent 30 years behind bars.

How did the “best justice system in the world” allow this to happen?  There are two reasons. 

The first reason is so worn as to be trite.  The defendants were Negroes and therefore presumptively suspect.  They were arrested on the alleged tip of an undisclosed informant passing along high school rumors. Fingerprint evidence from the scene of the crime was never examined and its existence was kept secret from the defense. In short, they were framed by a police force which, throughout the country, has proved itself to be consistently racist and corrupt.

But how was it that this flimsy case survived the “crucible of adversarial testing” before a “jury tried and true” in a trial governed by the very highest  principles of Due Process of Law, inherited from Magna Carta and reaffirmed for generations by courts zealous to protect the interests and God-given freedoms of the individual?

Simple: The defendants confessed and that was that. 

However, this occurred in 1983. Surely the suspects were advised of their Miranda Rights. Surely indeed, which brings us to the stinking core of the heap: Miranda was designed to save the confession not to protect the individual.

As everyone knows, Miranda v. Arizona (1966) 384 U.S. 436  required police to inform arrested suspects of their Constitutional rights prior to any questioning.  The arrested person must be told that he has a right to remain silent; that he is entitled to a lawyer of his choosing or paid for by the State and that he can refuse to answer questions at any time.   What could be more fair?

If, after being so advised, a suspect then chooses to ‘fess up that is his choice. The State has done what constitutional decency requires and it can hardly be expected to now ignore incriminating information freely and voluntarily provided!

This is the sort of high-sounding flatulence the United States inherited from English judges along with Magna Carta.

Why give warnings at all?  Because as the Supreme Court found in the Miranda Case, custodial interrogation is “inherently coercive.”  (Id., at 467, 515, 528, 535.)  Those two words are worth pondering.

Anyone who has ever been pulled over for so much as a speeding ticket certainly knows the feeling.  It is not pleasant.  It is stressful.  It causes the mind to race ahead thinking about too many things and therefore about none of them very well.  Imagine then being handcuffed, walked into a cell and cut off from the world.  Deprived of liberty it is animal and human nature to freak.  Being taken into custody is at least inherently stressful.

But it is worse.  A person who is taken into custody looses his freedom and not in some abstract or theoretical way. He cannot move his hands where he wills.  He cannot walk where he will.  He cannot access the phone or the urinal without asking  permission from someone who has complete control over his immediate existence.  That is what being in custody means.  How can anything be considered “free and voluntary” in such a situation?  If you are in custody you are not free.  One would think that was obvious.

Nor voluntary.  The word “voluntary” means “unconstrained by the interference of another; unimpelled by the influence of another; not prompted or persuaded by another; done of his or its own accord; spontaneous; acting of one's self, or of itself; free.” (Webster's Revised Unabridged Dictionary (1913), p. 1618.)

A person in custody knows that the police, at the very least, suspect of him a crime and have the power to prosecute him should they choose to do so.  This presents an ultimate risk of being sent to prison. Even more immediately it presents the more imminent prospect of being locked up pending trial, of loosing one’s job, of having one’s whole life turned inside out and ransacked by a decision that is, in the first instance, entirely up to the arresting officer or detective who takes over the case.

Thus, in addition to loosing his physical freedom and his contact with outside resources, the arrested person is placed under extreme duress by the prospects and alternatives faced. His situation is circumscribed and constrained by another. Like a dog, he will constantly be responding and adjusting himself to the person who can “make things go worse” for him.

"The human mind, under the pressure of calamity, is easily seduced, and is liable, in the alarm of danger, to acknowledge indiscriminately a falsehood or a truth, as different agitations may prevail. A confession, therefore, whether made upon an official examination or in discourse with private persons, which is obtained from a defendant, either by the flattery of hope, or by the impressions of fear, however slightly the emotions may be implanted, is not admissible evidence; for the law will not suffer a prisoner to be made the deluded instrument of his own conviction."   (Hawkins' Pleas of the Crown (6th ed., by Leach -- published in 1787, book 2, chapter 46, section 3, cited in Bram v. United States (1897)  168 U.S. 532, 547.)

All this is what “inherently coercive” means, which means that legally speaking no statement given in custody could possibly be considered “free and voluntary.”  Howsoever viewed, to think otherwise is an oxymoron.  The Supreme Court in Miranda recognized this, said this and cited studies on the psychological impact of being taken into custody.  

Oh... but me oh my, what are we to do without a confession?  Are we to forgo the apple of conviction “merely” because the confession was  “situationally” coerced?  After all, it could be true and a trial is “the pursuit of truth.”

So, rather than require the police to come up with independent evidence of the crime, the Court came up with a Marvellous Solution, one that was as Anglo-American as the Playing Fields of Eton .... or Andover.   We can, the Court intoned, redress the coerciveness of the situation and “balance the playing field” by requiring the police to advise the suspect of his rights and the freedoms he retains, as a matter of law, even while in custody!

Let it not be said that the Constitution stops at the cell door!  Nay! Fie!  Even suspected of the most foul wrong doing, the individual retains his precious, inalienable rights. 

What kind of imbecile could come up with such a solution?

Actually, these “advisements” were first enacted by a statute of Queen Victoria (11 & 12 Vict. c. 42, § 18) which required a person subpoenaed to a magistrate’s inquest to be advised of his right to silence, viz:

"Having heard the evidence, do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in writing, and may be given in evidence against you upon your trial."

But there is a whale of a difference between advisement by a judicial officer, in court, upon mere summons and advisement by the burly brute who just threw you against a wall, cuffed your hands and generally manhandled you into a cell where you will stay until and if he lets you out.

More critically, the referenced advisement ensued after having heard and being presented with the prosecution’s evidence. In other words, the statute presupposed that there was something more than an accusation to make the case. 

Did the Supreme Court really not see the difference?  Did they really and truly think they could “balance the playing field” at the police station?  Were they such terminal preppies? 

Of course not.  The Court was well aware of existing literature on the matter which its own precedents had cited.   One can at least assume that Supreme Court judges understand the English words they use; and “inherent” means: permanently existing in something; inseparably attached or connected; naturally pertaining to; innate; inalienable;...”

If custodial interrogation is “inherently coercive” that means compulsion is indelible to and inseverable from the situation.  It cannot be cured by an “advisement” ... particularly from the person who just probably punched you in the gut and ran through the words of the warnings quickly, sarcastically and in a tone of voice which said: “and God help your sorry moutha fuckin ass if you “choose” to play hardball, asshole.”

The U.S. public, ever ignorant and belligerent, abetted by a chronically stupid, insipid and scandal-mongering press, are convinced that the Miranda decision was bleeding heart liberal judicial activism aimed at shackling the police and coddling criminals.

Just the reverse is true: Miranda was judicial activism aimed at “saving the confession” in order to insure conviction while providing some pretty window dressing to prove just how much and how deeply we cared for Due Process.

"This Court, while protecting individual rights, has always given ample latitude to law enforcement agencies in the legitimate exercise of their duties. The limits we have placed on the interrogation process should not constitute an undue interference...."  (Miranda, supra, at p. 481.)

But surely there are other legal safeguards which forestall the possibility of a person being convicted solely on the basis of a confession which might possibly, in spite of all our best safeguards, be the result of some  psychological process that makes an unfortunate person “the deluded instrument of his own conviction."

Yes indeed!  It is known as the corpus delicti rule.  Before a confession can be admitted, there must be proof that the crime charged was committed.   This ancient and hoary rule serves the fundamentally important purpose of insuring sure that a crime is not invented by the police or contrived or imagined by the defendant himself.

No! No!  A man cannot simply walk into a police station and confess to killing a cat without there being independent proof that a cat was killed.  The corpus delicti rule insures that a man will “never be convicted on the strength of his  confession alone.” 

But of course —- and this is said with a completely straight face  —  proof that a crime  was committed does not require proof of the perpetrator’s identity.  “Identity is not part a crime’s corpus.” 

In other words, if there is proof that a cat was killed in Montana, it is sufficient for conviction that a man in New York says “I did it.”  Let it not be said that American law rushes to convict “solely” on the strength of a confession!

Of course a crime was committed. A rule which seeks to prevent conviction upon entirely unsubstantiated accusations sets the bar so low as to be worthless. The critical issue is always the identity of the perpetrator.   The corpus delicti rule insures nothing and permits the most critical and essential part of the case to be supplied entirely by three words from the accused’s mouth.

This is the kind of garbage that passes for Due Process in the United States of America, and it was on the basis of this garbage that the two innocent black men were convicted of a rape and murder they admitted to but did not commit.

Well, one might ask, why did they admit it?  Because nothing in Miranda prevents the cops from tipping the field once they have leveled it for all of 30 seconds. 

Nothing in Miranda prevents interrogations lasting for hours; interrogations after being awoken in the middle of the night; Mutt and Jeff routines, lies, insinuations, and an arsenal of tricks and devices conjured up by government psychologists and experts in “cracking” suspects. 

Once the warnings have been run-n-mumbled through... let all out psych war begin!  And like imperial Caesars at the games, the Supreme Court has smiled on the sorry spectacle. 

Not only were the two black teenagers subject to a “relentless” interrogation that lasted for hours it also turned out that they were mentally disabled.  One of them could barely write.

But in the lofty reaches of Supreme Court jurisprudence that does change a thing. So long as the suspect was capable of understanding the words spoken, he is presumed, as a matter of law, to understand the nature and implication of the rights as to which he has been advised. 

Even an illegal immigrant, who speaks a bare minimum of English and who has absolutely no contextual awareness of how the judicial system works or the role of the police in it, has been held to “sufficiently” understand the Miranda  warning thus “preserving” his confession for use at trial.

It was racism that framed the two brothers and brought them to trial but it was rot from the white-washed sepulcher that allowed them to be unjustly convicted.


©justinlaw, 2014

Reasonable Wrongness

Somewhat like an alarm going off in the smouldering remains of a fire, the Supreme Court’s decision in Heien v. North Carolina, upholding a search incident to a broken tail-light, has set off a flurry of public criticism.

Notwithstanding vociferous exasperation from some quarters in the media, the Court’s  ruling had nothing to do with Justice Scalia’s subservience to corporate interests.  It was rather the putrid fruit of a poisonous jurisprudence.

North Carolina law requires a vehicle to have “a stop lamp” (nowadays called a tail-light).  Heien’s vehicle had two, one of which was not working.  The essence of the Court’s decision was that even though Mr. Heien had done nothing wrong his stop, detention and search were nevertheless lawful. 

It always helps to begin at the beginning of things which, in the law’s case, is English.

Charles Pratt, 1st Earl of Camden from whose decision
in Entick v Carrington the Fourth Amendement derives

The American distaste for prepositional clauses leads them to think that in order to arrest someone there has to be “probable cause”.  Not so. Non-use of prepositional clauses turns hard thinking into mush.  In order for a search or seizure to take place there must be probable cause to believe that a crime has been or is being committed.

Once it is understood what probable cause really is, the wretched absurdity of the Court’s decision unfolds as if unto a bowl. 

How is it possible for there to be probable cause to believe a crime was committed when what was observed was not a crime at all?   It isn’t.  To say otherwise, is goobledygook, with emphasis on the “gook.”

How did the Supreme Court get itself to swallow this gook?  It did so by driving a truck the wrong way through the tunnel of the word “believe”.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

For at least a century and a half after it was written, the Fourth Amendment was understood to require a warrant and probable cause before an arrest or search could be undertaken.  In other words, the word “reasonable” was understood to be contextually defined and limited by the ensuing clauses.  “Reasonable” meant having a warrant and probable cause. 

In 1925, in Carrol v. United States (1925)  U.S., 267 U.S. 132 the Supreme Court held that it wasn’t always necessary to have a warrant so long as there had been  probable cause for the search.

It will be noted that this abbreviated way of speaking -- which substitutes the phrase “for the search” for “to believe a crime has been committed, thereby warranting a search” --  runs the risk of altering the constitutional context unless one remembers precisely that which has been skipped over.

That said, the Carrol  decision did not alter the long understood rule that “reasonable” meant having probable cause to believe a crime was committed.

Then came Rehnquist.  This man, joined by other early proponents of the national security police state, had a deep and abiding antipathy toward the Fourth, Sixth and Eighth amendments. Under Rehnquist’s guidance the word "reasonable" became decoupled from the rest of the Fourth Amendment.

This decoupling contravened all canons of statutory or constitutional construction.   If the warrant and probable cause clauses had nothing to do with the constitutional requirements for a search why bother stating them at all? It would suffice to simply have written: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated [.]"

However, it is axiomatic that all words in a statute or provision must be given effect.  If a court can ignore part of a sentence or paragraph why bother with written statutes and laws at all?

The Supreme Court’s decoupling of the word “reasonable” from the rest of the amendment simply erased one half of the constitutional guarantee.  The Fourth Amendment was there but it was there for show and for optional use.  It established no constitutional standard.

The situation was even worse because along with this decoupling the Court lowered the standard of proof from “probable cause” to “reasonable suspicion.”  (See Terry v. Ohio (1968) 392 U.S. 1)  That is another story not germane to the present issue; for, in the context of the Heien case, the question still remains “reasonable suspicion” of what?

Anglo-American jurists think that “reasonableness” is some sort of sacred totem that solves all problems.  Actually it is simply a malleable weasel word.   “Reasonable” simply means: does it sound, sit and feel more or less sensible, common sensical, practical, maybe even a tad logical.  

The sheer gooeyness of the word “reasonable” has troubled the Court which is why (since the advent of Rehnquist) it cobbled up the term objective reasonableness.
 

The notion is that whatever “reasonableness” might be exactly it is to be measured “objectively”  by known, observable existing hard facts of some sort, which other people can see and assess for themselves.  In other words, we are not wandering into the nether world of the Erlkonig (a fantasy goblin said to inhabit German forests).

Ah, but we are!  The phrase “objective reasonableness” is a pleanosm — a redundancy which corrodes if it does not actually destroy the word modified.  What is non-objective or "subjective reasonableness”?  Insanity?  

"But of all these books there were none he liked so well as those of the famous Feliciano de Silva's compositions.  Their lucidity of style and complicated conceits were as pearls in his sight, particularly when in his reading he came upon courtships and cartels, where he often found passages like "the reason of the unreason with which my reason is afflicted so weakens my reason that with reason I murmur at your beauty;"  ... (Don Quixote de La Mancha  Ch. 1. )

Should we really have to worry about the interior “reasons” of a lunatic?  And is the constitutional standard for a search or seizure simply that it not be outright insane?

 

The Reasons of his Unreason

Indeed yes, because what the Supreme Court has now held is that the subjective but erroneous beliefs of the arresting officer are constitutionally reasonable.   In other words, it has twisted probable cause into a subjective belief without objective correlative.

It must be remembered that the single broken tail-light was not “objectively”  a crime in North Carolina,  whether the officer thought so or not. 

The Court’s decision does not destroy the Fourth Amendment — that has already been done — it simply opens the way for complete total police arbitrariness without recourse to law.

-oOo-

The second wretchedness of the Heien decision is actually the poisoned fruit of liberal jurisprudence

For years it was understood that an unconstitutional act was ultra vires.  That is fancy Latin for “beyond the pale” or “in the outer darkness.”

Let me explain.  The Constitution defines a reality in which we wish to exist.  It is an ideal, but it is an ideal which we — by our daily actions — bring into actual being by our observance of it.  The U.S. Constitution is fundamentally an ontological document.

Thus, an act that was unconstitutional was deemed “outside” the pale and, being so, simply did not exist in contemplation of law — that is, in the ideality of the Constitution and its bounden actualization by us.  It followed that if an act was unconstitutional it could not, by that same contemplation, being given any force and effect.  It was a nullity.

The Exculsionary Rule  — disallowing the use at trial of illegally garnered evidence — followed ineluctably.  If a search or seizure contravened the Fourth Amendment its fruits could not be given any effect because to do so would be to accept what was not acceptable. 

Police and prosecutorial mavens on the Court chafed under the logic of the Exclusionary Rule against which they mounted many successive attacks.

To shore up the rule, in Mapp v Ohio (1961)  367 U.S. 643,  the liberals on the Court conjured up a totally ridiculous sociological function to justify the exclusion.  It existed, they said, as a “deterrent” to police misconduct. Excluding illegally seized evidence would help “teach” the police how to behave.

This functionalist rationale was total garbage. It was part of “modern” sociological jurisprudence which rang sweetly in “liberal” ears.   But there was no showing that the police (anymore than criminals) think about the law beforehand.  Nor was there any evidence that an officer lost sleep at night over a lost search. 

Conservatives were quick to parlay this nonsense to their own advantage.  Well then, they said,  if a police officer honestly believed in his mistake there really is no bad behavior to deter.  There is no point in punishing a person who is trying hard to be good.  (Leon v. United States (1984) 468 U.S. 897)

In casting about for pragmatic and sociological-sounding justifications, the liberals had stupidly shifted the focus from whether there were grounds to believe that a person had violated the law to whether the police were trying to break or consciously evade the law. 

Good faith ought to be irrelevant. An act is either constitutional or it is not.  Who cares about good intentions?  It’s the road to hell that matters.

In the decade after Leon, the Court somewhat backed away from the good faith rule, but today they finally took the jump.   Through  a double gibberish Sundae of bad grammar and sociological nonsense and twisted thinking they have mulched the Fourth Amendment into a guarantee against insane and malicious searches and seizures.  While that might sound not so bad, it is in fact terrible because “insane and malicious” is so far in the outer orbit of Pluto that it leaves an immense circuit of allowable arbitrary behavior.

It is even incorrect to say that today’s ruling by the Court renders the Fourth Amendment discretionary.  Here is a standard definition of allowable judicial discretion:

"The term [judicial discretion] implies the absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. To exercise the power of judicial discretion all the material facts in evidence must be known and considered, together also with the legal principles essential to an informed, intelligent and just decision." (In re Cortez (1971) 6 Cal.3d 78, 85-86 >)

Thus, the rule follows that a judge who is actually mistaken as to what the law is cannot and does not properly exercise any discretion which can be upheld.

Although this definition of discretion makes wide berth for "judgements within the bounds of reason" those judgements must be informed by true facts and correct legal principles.  If not so informed the definition simply collapses into a meaningless heap.  

It is that heap which the Supreme Court triumphs today under the newly minted doctrine of reasonable wrongness.

Remains of the Fourth

©justinlaw, 2014


.

Harmless Injustice

Facts:

Rice and Rivers were apprehended in a car driven by River's boyfriend Manafov half an hour after the robbery of a nearby Chevron station.  A security video showed Manafov holding up the cashier before making off in a car.  At trial, Rivers testified that earlier in the day Rice had told her that he and Manafov were going to “hit a lick” (i.e. rob some place).   She testified that she did not know how to drive and that  she had been asleep in the car at the time of the Chevron robbery.   A blurry outside security video showed a vehicle driven by an indistinguishable person pulling away from the station.  Summers, the case detective, was allowed to testify that, in his opinion, the video depicted Rice.   At the time of his arrest, Rice, who is black, was wearing a white tank-top and blue shirt.  Paperwork belonging to appellant was found in the car, along with a fleece-lined jacket, red and white caps in the trunk, a gun hidden under the hood and money stashed under the rear seat.   Other witnesses testified that a short while before the Chevron robbery, Manafov's car was spotted pulling up to another gas-station convenience store.  The driver of the car, who was wearing a fleece-lined coat, stalled a couple of times when backing up and did not appear to know how to drive.    Based on this evidence a jury found Manafov and Rice guilty of the Chevron robbery.

On appeal, Rice contended that the detective's opinion as to what the video showed was prejudicially improper evidence and that, once his opinion was removed from the balance, there was insufficient evidence to support the jury's verdict of guilt.    Rice also contended that the trial court had failed to instruct the jury that the testimony of an accomplice required some independent corroboration before it could be relied upon to establish guilt.

Issue:

Was it error for the trial judge to allow the detective to state his personal opinion that the driver depicted in the video was Rice?

Argument:

Yes.     “One of the fundamental theories of the law of evidence is that witnesses must ordinarily testify to facts, not opinions." (People v Melton (1988) 44 Cal.3d 713, 744.)  Expert opinion is allowed on a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a); People v. Harvey (1991) 122 Cal.App.3d 1206, 1227); however, it is is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness." (People v. Valdez (1997) 58 cal.app.4th 494,  506.)  Detective Summers had no more "expertise" watching a video than any juror. It was therefore error to allow him to instruct the jury as to what the evidence showed.

Also by law, a defendant cannot be convicted on the testimony of an accomplice unless it is corroborated in some substantial way that connects the defendant to the crime.   (Pen. Code, §  1111.) The corroborating evidence must tend directly and immediately to connect the defendant with the commission of the offense (People v. Shaw (1941) 17 Cal.2d 778, 802) and must do so without any aid, interpretation or direction from the testimony of the accomplice People v. Lewis (2004) 120 Cal.App.4th 837, 848.)  As a matter of law, without corroboration, accomplice testimony  is never  sufficiently trustworthy to establish guilt beyond a reasonable doubt.  (People v. Gonzales & Soliz (2011) 52 Cal.4th 254, 303.) 

Rivers' had an obvious motive to exculpate herself by pointing the finger at at Rice.  The only possible corroboration of  Rivers' testimony was the blurry video.   What the video showed, and if it put Rice in the driver's seat, was up to the jury to decide.  However, that decision was "tilted" in favour of the prosecution by the detective's opinion testimony.   To make matters worse, the jury had not been instructed on the requirement that an accomplice's testimony needed to be independently corroborated.   The ultimate result was that Rice had been denied a fair trial by virtue of a conviction based on  biasing opinion of the prosecution's own team.

Court of Appeal Opinion:

The appellate court affirmed the judgement.  It agreed that the assigned errors had occurred but ruled that they were "harmless" because they did not affect the ultimate result.   

With respect to the erroneous admission of Detective Summers' opinion,  the court explained,  "The video was admitted into evidence and the jury was able to evaluate what it showed as to the driver.  ....  While the People could certainly argue the video showed Rice was the driver, it was improper for a law enforcement officer to testify to his observations and opinion of the very same evidence the jury was  charged with evaluating. This is because the jurors may have deferred to Summers observations as to what the video showed over their own observations, due to his status as a law enforcement officer. Indeed, in closing argument the prosecutor argued the jury heard the description of the driver based on the video "from a veteran detective" ....who "has been working crimes against persons for decades."

With respect to the trial court's failure to instruct on accomplice testimony, the court of appeal noted that "Rivers was arrested with Manafov and Rice, and only was forthcoming with the police when she realized she could be charged with robbery. She was originally charged with robbery, but the charges were dismissed."  In other words, as with most accomplices, her credibility was highly suspect.

Nevertheless, the court of appeal concluded that the failure to instruct the jury on the need to corroborate Rivers' testimony was harmless because her testimony was corroborated by the video which showed a driver matching her description; and the error in allowing Summers to testify as to what the video showed was rendered harmless by Rivers' accomplice testimony which implicated appellant.

 Critique.

The Court of Appeal was wrong.   Its reasoning was paradigmatic bootstrapping.  Moreover, it cured the error of allowing the case to be  decided by Detective Summers by becoming the 13th Juror and deciding the case for itself.    The court's opinion is an illustration of the misuse of the harmless error doctrine which has become flagrantly standard in the appellate courts.    The doctrine has been used to affirm judgements in cases literally riddled with error, on the grounds that the defendant was good for it anyway.  The abuse of the harmless error rule ultimately deprives a person of his right to be tried by a jury -- not by judges substituting their opinion for what they say the jury would have done in any case.

Background

In the 19th century,  there was a proclivity on the part of some appellate judges to reverse cases on proverbial "technicalities" some of which were pretty de minimis by any standard.   In response, legislatures and higher courts fashioned a harmless error doctrine, the general aim of which was to prevent judgements from being reversed on truly trivial grounds. 

The problem that immediately arose was how to define "trivial."   Not illogically, the courts concluded that to say something was "trivial" meant that it was unimportant in relation to everything else in the case.  A small error which might be insignificant in a large complex case could be the crux of the matter in a small, simpler one.   Thus, deciding whether any given error was trivial, and hence harmless, required looking at the evidence and judging its overall thrust and weight.  But this kind of assessment gave rise to yet another problem: the dilemma of the "Thirteenth Juror"

The entire premise of the judicial system is that juries and not judges decide guilt or innocence.   If judges end up deciding what evidence is important or not important, weighty or not weighty then they become  the ultimate jurors.   Thus, in order to avoid reducing jury verdicts to little more than a preliminary formality, the appellate courts adopted an indirect approach which focused not on the impact of the error on the case but on its impact on the jury's deliberations.

Accordingly in  Chapman v. California  (1961) 386 U.S. 18 the Supreme Court ruled that a reviewing court could not find an error harmlessness based simply upon its own "view of 'overwhelming evidence.' " (Chapman, supra, at p. 23.) Instead,

“The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. .... An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot ... be conceived  of as harmless.” (Id, at pp. 23-24,

Thus, under Chapman, an error in the proceedings requires reversal "unless the reviewing court is satisfied beyond a reasonable doubt that the error “did not affect the jury's verdict.”

California came up with its own formulation of harmless error. In  People v. Watson  (1956) 46 Cal.2d 818, the California Supreme Court ruled that  an error is prejudicial “when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Id., at p. 836.)

In legaleze, the terms "reasonably probable" refers to a "preponderance" -- that is a 51% probability.   Thus, under the above formulation, an error is not harmful if a reviewing court thinks that the evidence preponderates in support of the guilt verdict.

The California high court appears to have had some doubts about the correctness of the Watson formula.  In  People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888,  it stated  that  "'probability’ for purposes of determining whether state law error affected the trial outcome does not mean ‘more likely than not,’ but merely a reasonable chance and more than an abstract possibility that it did."  (Id., at p. 918.)

There is no substantial difference between a test which focuses on whether there is more than a fanciful possibility of an affect of the error  on the verdict (Watson) and a test in which the reviewing court ask itself if it can conclude beyond a reasonable doubt (i.e. beyond a mere fanciful doubt) that the error did not affect the outcome (Chapman).   However,  apart from the Ghilotti case, the California Supreme Court has hewed to the traditional formula that  that error  “requires reversal [only]  if it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error” (People v. Richardson (2008) 43 Cal.4th 959, 1001-1002.)

Thus, Chapman and Watson set forth two different burdens of proof.  Under Chapman the reviewing court must conclude "beyond a reasonable doubt" that the error did not affect the jury's deliberations adversely to the defendant.  Under Watson the reviewing court must conclude only that, discounting the error, the evidence showed a reasonable probability of guilt. 

A further distinction between Chapman and Watson concerns whether the reviewing looks at the effect of error on the ultimate outcome as such (i.e. the verdict reached) or whether it assesses the error in terms of its impact on the jury's deliberations.   In Watson, the court's concluding holding was that, in the case before it,  "[i]t does not appear reasonably probable that the jury was influenced by such evidence to defendant's prejudice, or that the admission of such evidence affected the verdict.” (Watson, supra, 46 Cal.2d, at p. 837.)  This statement was indistinguishable from Chapman's formula.  

However, in its previous discussion of the various harmless error formulations that had been proposed, Watson repeatedly referred to the impact of an error on the "result" or "outcome" of the case; and this has been the focus which the California court's have followed.

Thus, as practiced, the federal rule of harmless error  looks at the effect of the error on the jury's deliberative process and requires a finding beyond any reasonable doubt that no critical effect took place (i.e. an effect which "might have" affected the result).   In contrast,  the California rule looks at the verdict itself and asks if it is reasonably probable that the error affected the result (or conversely) if, notwithstanding the error, the evidence is such as renders a guilty verdict reasonably probable.

Under the federal harmless error rule, there is no question that the error in allowing Detective Summers to state his opinion on the critical question of the driver's identity was prejudicial error.  Chapman's  precise holding is directly applicable.  In Chapman, a prosecutor (instead of a prosecution witness) volunteered his personal opinion on the question of guilt.  The Supreme Court held,

 “Though the case in which this [error]  occurred presented a reasonably strong ‘circumstantial web of evidence’ against petitioners, ... it was also a case in which, absent the constitutionally forbidden comments, honest, fair-minded jurors might very well have brought in not-guilty verdicts.  Under these circumstances, it is completely impossible for us to say that the State has demonstrated, beyond a reasonable doubt, that the prosecutor's comments and the trial judge's instruction did not contribute to petitioners' convictions. “  (Id., at pp. 25-26.)   

Thus, under the Chapman standard, the Court of Appeal in this case could simply not say, as it did, that " the jurors may have deferred to Summes’ observations as to what the video showed over their own observations,"  and then conclude that the error had no undue influence on the jury's deliberations.   Such a conclusion did no more than state an oxymoron. 

However, under the Watson standard, as it has been applied, it appeared reasonable to say that notwithstanding the error, the evidence in the case was such that it is reasonably probable the jury would have voted guilty anyway.  The problem with the accepted Watson formulation is that it is indistinguishable from a sufficiency of the evidence test which is completely inappropriate in the context of given error.

Background.  The Constitution requires that criminal charges against the accused be proved beyond a reasonable doubt.  (In re Winship (1970) 397 U.S. 358.)   This requirement means that a verdict of guilt must be based on more than pale and bare evidence but rather that the evidence of guilt be "substantial --  that is  reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)

The federal and California sufficiency tests are identical; and once again it can be seen how the formula seeks to avoid placing the appellate court in the position of a Thirteenth Juror.  The question is whether there is evidence in the record which would have supported the verdict the jury did in fact reach.

The Jackson/Johnson rule is called "deferential" because the point of departure is the given fact that the jury did reach a guilty verdict.  In doing so, it must have believed and credited that evidence which pointed to guilt and, by the same token, it must have disbelieved or discounted evidence which pointed toward innocence.   Under "sufficiency analysis" the reviewing court does not re-weigh the evidence for itself.  But it does weigh the evidence the jury evidently relied on, and it does evaluate the reasonableness of any guilty inferences drawn from those evidentiary facts.

Classic examples of insufficiently substantial evidence would be claims of a deaf person to have heard the "thumps" abovestairs (Witness for the Prosecution) or to have seen the murder by the light of the moon (which did not shine that night).  The Sufficient Evidence Test aims to insure the right to not to be convicted on evidence which is too flimsy or improbable to prove the case beyond a reasonable doubt.

But the test presupposes a trial that is free of error.  That is the only reason the jury's verdict is deferred to as the point of departure.  Where legal error has been shown to exist then a sufficiency of the evidence analysis is inappropriate because it tacitly begs the question.

In upholding the verdicts in the present case, the Court of Appeal slid from harmless error analysis into a sufficiency of evidence assessment.  That was the only way it could conclude that the admission of Summers' testimony might have influences the jury but there was such sufficient evidence of guilt that the error probably did not affect the result.

The Court of Appeal's analysis flows from a  common misinterpretation of Watson.  As shown above, the Watson test actually states the same standard as used in Chapman.  The common place idea, among California courts, that it sets a "lesser" standard is just plain wrong, once one actually reads the  Watson opinion instead of mechanically repeating a short-hand rubric.
 
But the misinterpretation has constitutinal implications.  The Sixth Amendment's reference to a trial "by jury" is more than just a guarantee of twelve sitting equals.  Trial by jury -- constitutionally understood -- encompasses a cluster of inter-related rights:  the right to a local jury, comprised of a random but fairly selected cross-section of the population, uninfluenced by outside pressures or bribes, properly instructed in the law by the judge and not allowed to hear matters passing as evidence  that are irrelevant, improper or unduly inflammatory.   When all these conditions have been then, and only then, has a defendant be accorded his right to a "jury trial" as contemplated by the Constitution.
   
When error has been shown to exist for an appellate court to state that in its opinion a guilty verdict would probably have been reached anyways,  simply washes away a defendant's right to a "jury trial."

©JustinLaw, 2013