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Greetings, Court fans!

Following up on yesterday’s Update, there are three decisions to report. The cases all involve criminal law issues, so if you don’t practice criminal law (or occasionally wish you did), you might want to skip this one, though the Court’s opinion on prudential standing in Kowalski is certainly all litigators. All in all, criminals end the day batting 0 for 3.

In Florida v. Nixon, No. 03-931, 543 U.S. __ (2004), the Court (Ginsburg, J., for all but the Chief, who did not participate) found that an attorney’s decision to concede guilt in a death penalty case, without obtaining express consent from his client, is not automatically prejudicial ineffective assistance of counsel. Express consent is, of course, required prior to the entry of a guilty plea, and the Florida Supreme Court held that, by analogy, it was required to concede guilt at trial or else the counsel’s decision to do so was per se ineffective and prejudicial. The Court reversed, finding the plea analogy inappropriate since the legal impact of a plea is different from that of a concession at trial (a guilty plea eliminates the right to jury trial, the protection against self-incrimination, and the right to confront one’s accusers). Thus, an attorney’s concession of guilt in a capital case without express consent of the defendant is subject only to the usual ineffective assistance analysis and not any heightened standard.

This case is an excellent example of how facts can permit a unanimous ruling in what otherwise might have been more a contentious case. Nixon’s attorney was an experienced death penalty counsel. He believed that the evidence against Nixon was so damning (including Nixon’s own confessions to police and two witnesses, as well as physical evidence connecting Nixon to the gruesome murder) that he would lose all credibility in the penalty phase by making a frivolous argument in the guilt phase. The trial court agreed, noting at trial that “the tactic employed by trial counsel . . . was an excellent analysis of the reality of his case.” Further, the attorney explained his strategy to Nixon on three occasions; Nixon did not expressly agree or disagree, which the attorney took as tacit agreement with the strategy. These facts undoubtedly made the Court’s legal ruling more palatable for all eight participating Justices.

In another unanimous decision, Devenpeck v. Alford, No. 03-716, 543 U.S. __ (2004) (the Chief again did not participate), the Court held that an arrest is lawful under the Fourth Amendment where there is objective probable cause, even if police inform and charge the individual with a different crime than that for which probable cause exists. The police pulled over Alford after receiving a tip that he was impersonating a police officer (he had pulled over behind a stranded motorist with his headlights “flashing” and led the motorist to believe he was a police officer; when stopped by police, he was listening to police frequency on a radio and had handcuffs and a hand-held police scanner in the car). They also found a recording device, and they arrested him and charged him with violating Washington’s privacy law, but not with impersonating an officer. The privacy law charge was eventually dismissed, however, because a Washington appellate court had previously held that taping police communications was not a privacy law violation.

Alford then sued the officers, alleging, among other things, violations of § 1983. The trial court charged the jury that, to find probable cause to support the arrest, it would need to find that the evidence known to police was sufficient to suspect that a crime had been committed, but that this evidence could not include Alford’s taping of his conversation with the officers since that was not a crime. The jury found for the officers, but a divided panel of the Ninth Circuit reversed, finding that the offenses for which probable cause existed (here, arguably impersonation and obstruction) had to be “closely related” to the offense police actually invoked (violation of the privacy act), which the court found not to be the case. Reversing the Ninth Circuit (it has not been a good start to the term for the Ninth), the Court stressed that an officer’s subjective reason for arrest is irrelevant. If the officers possess information sufficient to form an objective basis for a finding of probable cause, that is all that is required.

Finally, in Kowalski v. Tesmer, No. 03-407, 543 U.S. __ (2004), the Court (Rehnquist, C.J.) held that attorneys for indigent defendants lacked prudential standing to challenge a Michigan statute providing that, with some exceptions, indigents who “plead guilty, guilty but mentally ill, or nolo contendere” have no right to court-appointed appellate counsel. The Court assumed that the attorneys could demonstrate injury-in-fact (loss of revenues related to court-appointed representation) and thus satisfied the Article III standing requirement, but found that the lawyers lacked prudential standing to vindicate constitutional rights of third parties because they could not demonstrate a “close relationship” to the third parties or a “formidable hindrance” to the third parties’ ability to assert their own rights.

While the Court had previously upheld third party standing on behalf of attorneys for existing clients, here the Court emphasized that the relationship between counsel and future “hypothetical” clients was not close (it was, in fact, nonexistent). The majority also rejected the idea that indigent defendants faced formidable hindrances to pursuing their rights, citing cases in which pro se defendants had, in fact, raised similar issues. The Court also believed that this federal lawsuit was an attempted end-run around state court review. The lawsuit was initially brought by both indigent defendants and the attorneys, but the inmates’ claims were dismissed based on the Younger absention doctrine, which precludes ancillary challenges in federal court where there is an ongoing state court proceeding. The majority believed that the attorneys should have brought these claims in direct appeals of criminal convictions and eventually, if not victorious, through a collateral habeas petition in federal court. The attorneys’ approach would lead to “the Federal District Court effectively trumping the Michigan Supreme Court’s ruling” and cause “unnecessary conflict between the federal and state courts.” This last ground may have been the driving force behind the majority’s opinion.

Justice Thomas filed a concurring opinion to emphasize his belief that, while the Court got it right here, the Court’s prior third-party standing cases had been too lenient and that third party standing should rarely, if ever, be found. A realist, however, Justice Thomas noted that “[i]t may be too late in the day to return to this traditional view.”

Justice Ginsburg, joined by Justices Stevens and Souter, dissented. They would have found standing to proceed based on the closeness inherent in the attorney-client relationship and the tremendous hurdles faced by pro se litigants in bringing these claims through direct appeal and habeas review. The dissent emphasized that the attorneys’ prospective lawsuit would protect thousands of criminal defendants, while proceeding through a direct appeal would permit the attorneys to represent just a few defendants. With respect to hindrance, the dissent noted that the case was “unusual because it is the deprivation of counsel itself that prevents indigent defendants from protecting their right to counsel.” In addition, the dissent explained the enormous procedural and legal complexities through which an indigent defendant (generally with little education and resources) would have to navigate in order to successfully appeal: “The rare case of an unusually effective pro se defendant is the exception that proves the rule. . . . The fact that a handful of pro se defendants has brought claims shows neither the run-of-the-mill defendant can successfully navigate state procedures nor that he can effectively represent himself on the merits.”

That brings us to the end of another week’s news. Absent any unusual events, we do not expect the Court to issue additional opinions until next year.

Happy holidays!

Kim & Ken