Showing posts with label criminal procedure. Show all posts
Showing posts with label criminal procedure. Show all posts

Thursday, July 16, 2020

Sullivan publishes on ethics, criminal appeals, and seeking Supreme Court certiorari

My friend and colleague Professor J. Thomas Sullivan has published, Ethical and Aggressive Appellate Advocacy: The Decision to Petition for Certiorari in Criminal Cases, 51:3 St. Mary's L.J. 585 (2019).  The article is especially salient in light of the U.S. Supreme Court's recent decision requiring unanimous juries to convict in criminal trials for serious offenses.  Here is the abstract.
Over the past six decades, United States Supreme Court decisions have dramatically reshaped the criminal justice process to provide significant protections for defendants charged in federal and state proceedings, reflecting a remarkable expansion of due process and specific constitutional guarantees. For criminal defendants seeking relief based on recognition of new rules of constitutional criminal procedure, application of existing rules or precedent to novel factual scenarios, or in some cases, enforcement of existing precedent, obtaining relief requires further action on the Court’s part. In those situations, the Court’s exercise of its certiorari jurisdiction is the exclusive remedy offering an avenue for reversal of conviction or order vacating the sentence. Petitioning for review by writ of certiorari is essential to the defendant’s chances for obtaining relief and is what might be characterized as the “final tool” in the appellate lawyer’s “toolbox.” There are at least five scenarios in which the petition for writ of certiorari is critical, and counsel must be aware of circumstances dictating strategic decisions that need to be made in order to protect the client’s options for relief in the direct appeal and post-conviction processes.
As Sullivan explains in footnote:
This is the third in a series of articles addressing appellate practice from a different perspective than that usually taken by appellate courts with respect to counsel’s duty in representing the client. It differs from Chief Justice Warren Burger’s approach to attorneys serving as an officer of the court, as he expressed while writing for the majority in Jones v. Barnes, 463 U.S. 745 (1983). For the author’s prior articles addressing a more aggressive approach to appellate advocacy than that taken by the Jones majority, see J. Thomas Sullivan, Ethical and Aggressive Appellate Advocacy: Confronting Adverse Precedent, 59 U. Miami L. Rev. 341 (2005), and J. Thomas Sullivan, Ethical and Aggressive Appellate Advocacy: The “Ethical” Issue of Issue Selection, 80 Denv. U. L. Rev. 155 (2002).
See also the multi-talented Professor Sullivan recently playing Taps.

Monday, September 9, 2019

Media didn't totally lose in Boston Globe access case over show cause criminal procedure

The Massachusetts Supreme Judicial Court today ruled against The Boston Globe in the Spotlight team's bid for access to the court records of a narrow class of show cause criminal hearings.  The case is a loss for access advocates, but not wholly.  The court did not deviate from established analyses for access to the judicial records.  And the court used its superintendence power to require data collection for public scrutiny of what happens in these shadowy hearings going forward.

I wrote about this case and these hearings on The Savory Tort in May.  This particular class of "show cause" hearing is a peculiar creature of Massachusetts law and practice, in which a court clerk, not a judge, gets a chance to second-guess police and refuse to issue a criminal complaint, ending a case.  On the up side, this is a process barrier that protects would-be criminal defendants from harsh consequences in minor matters that don't warrant the expenditure of judicial resources, also encouraging alternative dispute resolution.  On the down side, critics have suspicions about these proceedings being used to protect the powerful, to show favoritism among attorneys, and, willfully or not, to effect race and other forms of discrimination in the criminal justice system.

The Globe sought access specifically to records of the sub-class of these hearings in which clerks found probable cause, yet refused to issue criminal complaints.  Public data about these hearings show big disparities among courts in the prevalence of these outcomes, which occur about 9,000 per year in the commonwealth, fueling speculation as to clerks' motives and rationales.  Making matters worse, there is inconsistency in how well clerks record and track what happens in the hearings, often leaving a scant record for review later, whether by a court, public oversight authority, or investigative journalist.

Photo by tfxc. (CC BY-NC-ND 2.0.)
The Globe argued for access under common law, the First Amendment, and the Massachusetts Declaration of Rights.  In today's ruling, the court rejected access on all three bases.  In doing so, though, the court colored within the lines of existing access doctrine.

Most compelling, first, was the Globe's common law argument: "not without merit," the court conceded.  The court acknowledged that the common law presumption of access to court records is known to attach to three classes of records: criminal cases, search warrants and affidavits after service, and public inquiries.  The court rejected analogy to criminal cases, because the show cause hearing occurs before a criminal case is initiated.  Rather, the proper analogy, the court reasoned, is a grand jury refusal to indict, which is sealed presumptively at common law.  The court also rejected analogy to pre-complaint search warrants, reasoning that the appropriate analogy is to the search warrant denied, or not yet served, when the public interest still weighs in favor of secrecy.

Pressing on the scale in favor of analogy to secret proceedings at common law was the privacy interest of the accused.  Here the broader context of the contemporary internet and technology as a threat to personal privacy overshadowed the court's logic.  The court reasoned that a principal common law rationale for secrecy in grand jury proceedings and in denied search warrants, namely, protection of the reputation of the innocent, is powerfully implicated in today's world, when a public record of a show cause hearing could turn up online.  There it would be accessible to everyone, including landlords and employers, who might discriminate against a person who never suffered a criminal complaint.

For the record, this argument for privacy and reputational integrity pulls at even my skeptical heart strings, as I have advocated for American adoption of the European online erasure concept in precisely this vein, notwithstanding First Amendment objections.  That said, I admit, it's a bit troubling to see this problem of unwarranted discrimination arising in the private misuse of information sneaking in through the back door of common law access and accountability analysis as a justification for government secrets.  Arguably the solution to the misuse of information is to do something about the person who misuses information, rather than redacting the free flow of information itself.  But that's a debate for another day.

Second, the court's First Amendment analysis tracked the common law analysis.  On the up side, the court employed the now long known, if no less opaque and controverted, "experience and logic" test of First Amendment access to the courts.  Building upon the analogy of the show cause hearing to grand jury secrecy, access was bound to fail both prongs of the First Amendment test.  Analogy naturally doomed the experience analysis, because pre-complaint criminal process has never been public.  And the privacy concerns fueled failure of the logic test.  The problem with "experience and logic" always has been that its results are foreordained by how one thinks about the hearing or record to which access is sought. 

Third, the court wrote that it never before has construed the Massachusetts Declaration of Rights more broadly than the First Amendment with regard to judicial access, and it saw no reason to do so today.  That disappoints me mostly just from the broad standpoint of liking creative state judicial construction of state constitutions as an instance of the 50-state-laboratory theory of our federalism.  In an age of paralysis in Washington—think gerrymandering—state constitutional law is a promising way forward.

Massachusetts Supreme Judicial Court
Faithful to access doctrine, the court pointed out that upon its very same grand jury analogy, it remains possible for an intervening movant, say, an investigative journalist, to seek access to a show cause record on a case by case basis.  This is a lesser known, and for my money under-utilized, access strategy, so it's pleasing to see the court stamp its imprimatur.  Common law access and secrecy are both presumptions, and each may be rebutted.  The court explained, "In considering individual records requests, the clerk-magistrate should balance the interests of transparency, accountability, and public confidence that might be served by making the requested records public against the risk that disclosure would unfairly result in adverse collateral consequences to the accused."

Transparency may win out, the court advised, in matters of public interest.  "[W]here the accused is a public official, the interests of transparency, accountability, and public confidence are at their apex if the conduct at issue occurred in the performance of the official's professional duties or materially bears on the official's ability to perform those duties honestly or capably."  That's a key check on clerks who might give the politically powerful a break—as long as watchdogs have an inkling to ask.

How will watchdogs know when something is amiss?  Even the court seemed somewhat concerned about the "wide disparities" in dismissed matters in the Globe's data set, e.g., probable cause with no criminal complaint issuing, one year "from a high of 43.9 percent in the Gloucester Division to a low of 0.2 percent in the Chelsea Division."  Though expressly eschewing any conclusion from the numbers, the court observed that "the magnitude of the apparent differences among courts suggests that different clerk's offices might have very different philosophies regarding the adjudication of these hearings."

To help the watchdog, the court exercised its power of superintendence over lower courts to compel electronic recordings of show cause hearings, preserving the record of judicial reconsideration in appropriate cases, and careful compilation of data about the secret hearings, including the race and gender of persons accused, and the names of attorneys in cases of private complainants.  Courts are expected to come into compliance in a year's time and to report anonymized statistics publicly.

Those measures hardly open the door to secret proceedings the way the Globe wanted, and they do nothing about the problem of clerks appointed through political connections playing an outsized role in the criminal charging process.  But the Globe got better than nothing, and maybe the door is cracked open just enough to deter dubious conduct and to squeeze some accountability out through a shaft of sunshine.

The decision against the Globe's petition for declaratory relief came from a unanimous panel of the Supreme Judicial Court, comprising six of the seven justices, and was authored by Chief Justice Ralph D. Gants.  The case is Boston Globe Media Partners LLC v. Chief Justice of the Trial Court, No. SJC-12681 (Mass. Sept. 9, 2019).