Legal Docket: Balancing rights and limits

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LINDSAY MAST, HOST: It’s Monday, the 27th of October.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Lindsay Mast.

JENNY ROUGH, HOST: And I’m Jenny Rough. Time now for Legal Docket. Today, three criminal law cases. One on the Fourth Amendment, one on the Fifth Amendment, and one on the Sixth Amendment.

Let’s start with the Fourth Amendment: Case versus Montana.

The Fourth Amendment protects people and their homes from unreasonable searches and seizures. It says no search warrant shall be issued without probable cause. Meaning reasonable belief that a crime is being committed. But there are exceptions.

MAST: In this case, police weren’t investigating a crime. They were conducting a welfare check. William Trevor Case’s ex-girlfriend called the police because she had been on the phone with Case when he threatened suicide. She heard him cock a handgun, heard a pop… then silence. At his house, Case didn’t answer the door. Though the window, police saw beer cans, a holster, and what looked like a suicide note.

After 40 minutes, they entered through an unlocked door without a warrant. Case emerged from a closet holding a gun in his outstretched arm. Police shot him but didn’t kill him. Case was then arrested for assaulting a peace officer. He now wants the gun and other evidence suppressed at his trial.

ROUGH: The question here: What standard applies to allow a warrantless entry under the emergency aid exception?

Attorney Fred Rowley represented Case and argued police need probable cause in a welfare check just like they do in a criminal investigation.

FRED ROWLEY: There is no liberty interest more deeply rooted in the Fourth Amendment than the sanctity of the home. … The police entered Trevor Case’s home without permission, a warrant, or even probable cause and they ended up shooting him in his own house.

But Justice Samuel Alito could not imagine the police would need more certainty of an emergency.

ROWLEY: What more would they need here? Look through the window and see him with a gun pointed to his head?

Rowley said the police should have known the circumstances were not urgent because of their prior encounters with him.

Case had threatened suicide before. Police knew of his mental health issues, and knew he was likely attempting suicide-by-cop. Meaning, he wanted to provoke a confrontation with police. Rowley quoted a conversation captured on bodycam.

ROWLEY: I would just quote, for example, police chief Sather says, he ain’t got the guts. This is probably the tenth time I’ve dealt with him doing this. As assessed by the officers on the scene … They drew the inference that he was unlikely to shoot himself.

MAST: Justice Ketanji Brown Jackson didn’t think that argument worked in Case’s favor.

JUSTICE BROWN: I find your argument very odd. … I’m thinking the fact that they had a lot of information actually hurts your case, not helps you. … On our axis of information and threat or risk this seems like it’s pretty high.

Because police entered the house for a welfare check, Justice Elena Kagan suggested dropping probable cause language altogether.

JUSTICE KAGAN: One of the things that strikes me here … most of the way we know what probable cause is is because we have a body of case law that talks about it, and it talks about it in an investigatory criminal context. And in this context, that way of figuring out whether there’s probable cause just disappears because that’s not the context we’re in. … Maybe … we just use a different language. … Do you have to have an objectively reasonable basis for believing that somebody needs emergency help?

Whatever the outcome, police need flexibility to help someone whose life is in danger.

ROUGH: Next case, the Fifth Amendment’s double jeopardy clause in Barrett versus the United States. Double jeopardy usually centers on the idea that a defendant cannot be prosecuted twice for the same crime. But also a defendant cannot be punished twice for the same crime.

MAST: Here, Dwayne Barrett drove a getaway car in a robbery that involved a firearm. Crime number one. During the robbery, a victim was shot and killed. Crime number two. A lower court found the separate crimes required two separate punishments under a firearm statute.

The defendant argues that’s wrong. A general rule says that when a defendant commits two crimes that arise from the same conduct, he’s only punished for the more serious crime.

But such an approach could potentially lead to bizarre results. Justice Alito brought up this hypothetical with the defendant’s lawyer Matthew Larsen.

JUSTICE ALITO: Suppose there is a person who is committing a crime and this person is very well versed in the … in our double jeopardy jurisprudence. And so this person commits an offense that has two elements, A and B, and the maximum punishment for that offense is five years, and the person says, wow, if I get caught and convicted, I don’t want to go to jail for five years. But I know that if I commit two other elements, C and D, then the maximum penalty for that offense is only one year. So let me go ahead and commit the greater offense. Does that make any sense?

MATTHEW LARSEN: So such a skilled defendant may engage in that conduct, your Honor. There are ample safeguards in place to protect against any injustice.

He said a court has discretion to impose the higher sentence.

ROUGH: It’s true courts are to presume Congress did not intend for a defendant to be punished twice for the same conduct. But that presumption is set aside if Congress has made it clear that it wants multiple punishments. So this case will boil down to statutory interpretation — whether Congress intended to authorize cumulative punishments or not.

Finally, the Sixth Amendment. Villarreal versus Texas.

The Sixth Amendment guarantees the accused “the assistance of counsel for his defense.” But lawyers still must abide by certain rules and codes of conduct. Think of it this way: Legitimate counseling includes a lawyer rehearsing the defendant’s testimony with him before he takes the stand. Impermissible counseling includes things like scripting answers for the defendant to recite.

MAST: In this case, defendant David Villarreal was accused of murder. At his trial, he testified that he acted in self-defense. About an hour after he took the stand, the judge called a 24-hour recess. The judge then told the defendant’s attorney he could talk trial strategy with the defendant overnight, but not about the testimony itself.

ROUGH: Let me explain the logic here: One purpose of a jury trial is to seek the truth from the evidence and testimony presented. If the defendant testifies, the prosecution will cross-examine him to test the truth of his statements. And the defendant’s attorney cannot coach his client on the stand. Preparation is over. So the judge here was extending that restriction to the overnight recess.

MAST: Villarreal was convicted of murder.

At the Supreme Court, attorney Stuart Banner argued for the defendant and said regrouping overnight is crucial. A defendant needs unrestricted access to his lawyer. Anything less violates his Sixth Amendment right to counsel.

STUART BANNER: Overnight recesses have always been a time of strategizing, discussions. I mean, this is like prime time for, in the middle of a trial, is an overnight recess.

Andrew Warthen for the state of Texas said the restriction is okay because it advances the purpose of truth-telling.

ANDREW WARTHEN: It’s an empirical predicate of our system of justice that an uncounseled witness is more likely to tell the truth than one who has time to pause and consult with their attorney.

But Justice Kagan probed the limits of the restriction with this example:

KAGAN: Listen, I’ve been noticing that you’ve been mumbling, and you’re also not making eye contact with the questioner. And it would just be a good idea if you stopped mumbling and made eye contact. Can the lawyer do that during an overnight recess?

WARTHEN: No. I would consider that to be coaching their testimony.

So if Texas gets its way, the content of the defendant’s testimony and how he presents himself are both off-limits.

ROUGH: There’s also a matter of time: short recesses … think lunch and bathroom breaks … versus long ones. Two precedents control here and are hard to reconcile. But both parties agree that limiting communications during a short recess is okay. They’re only fighting about the overnight one. But that made no sense to Justice Brett Kavanaugh.

JUSTICE KAVANAUGH: I’m trying to figure out the logic of a line based on a 15-minute recess versus a lunchtime recess versus a lunchtime plus I have another matter I have to handle so it’s going to be a two-hour break recess versus an overnight recess.

The rationale for limiting attorney-client communications during short recesses is trial logistics. Banner again:

BANNER: If defendants had the right to confer with counsel during every tiny little recess, you know, one minute, ten seconds, or whatever, it would just be impossible to run a trial.

He said overnight is different. But Justice Kavanaugh still had concerns.

KAVANAUGH: It depends on the accident of a recess. So those defendants are going to be treated very differently. Does that make a lot of sense?

MAST: The justices also wrestled with the line between discussing trial strategy, allowed… and trial testimony, not allowed. The defendant argued strategy and testimony are too intertwined. A lawyer and his client must be able to discuss both.

Texas disagreed and wanted the line.
Justice Amy Coney Barrett proposed this language

JUSTICE BARRETT: You can’t talk about the content of the testimony or the manner of its delivery, but you can discuss any strategic consequences of the defendant’s testimony, such as whether to take a plea.

ROUGH: But how that would play out proved confusing. Here’s an exchange between Texas’ attorney Warthen and Justice Kagan.

WARTHEN: You can tell them: We could say, you need to take the plea bargain. You might need to take the plea bargain because the state’s case was so bad, but also if he just did a terrible job. And if the defendant says, well how did I do a terrible job? You would just have to tell them, I’m under a court order. I cannot tell you why that’s true. But in my professional opinion, you need to understand that the best course of action for you now is to take the plea bargain.

JUSTICE KAGAN: Why is that, Mr. Warthen? … The person says to you, I don’t understand, like, what do you think went wrong? Like why was it so serious? … And you say, I can’t tell you. Just trust me that you have to take a plea bargain. And the person says what do you mean trust me? I mean, I want to understand why this went so wrong. … Like shouldn’t the lawyer be able to say, here’s what went wrong, here’s why it’s really consequential, here’s why you should take a plea bargain?

A difficult balance. I get the purpose of the limitation, but I wonder if a rule that’s too restrictive could also impede truth-finding.

And that’s this week’s Legal Docket.

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