Supreme Court Update: Ashcroft v. al-Kidd (10-98), United States v. Tinklenberg (09-1498), and Bobby v. Mitts (10-1000)
Greetings, Court fans!
The decisions are washing ashore in waves now as we make our way into June. This Update wades through: Ashcroft v. al-Kidd (10-98), holding that former Attorney General Ashcroft could not be sued for allegedly instituting a policy to use material witness warrants to preventatively detain terrorism suspects; United States v. Tinklenberg (09-1498), explaining how courts should count time under the Speedy Trial Act; and Bobby v. Mitts (10-1000), a per curium decision regarding penalty phase jury instructions in a death penalty case.
Can the government use a material witness warrant to preventatively detain a suspected terrorist? According to Ashcroft v. al-Kidd (10-98), the answer is yes. . . maybe. In a short and blistering majority opinion by Justice Scalia, the Court concluded that an arrest and detention of a material witness pursuant to a valid material witness warrant cannot be challenged as unconstitutional on the basis of allegations that the warrant was being used as a pretext for preventative detention. Assuming that a warrant was validly obtained based on individualized facts, an arrest pursuant to that warrant cannot be invalidated based on the subjective intent of the officers involved. The only exceptions to this objective standard have involved administrative searches and special needs cases, not involved here. Moreover, even if there was a constitutional right to avoid a pretextual material witness arrest, Ashcroft would have been entitled to qualified immunity from suit because that right was not clearly established. The Ninth Circuit improperly relied on broad general principles (inadequate to provide sufficient guidance to government officials) and dicta from a single district court opinion (which was certainly inadequate to establish a "clearly established right") in holding otherwise.
With this last proposition, everyone concurred (but for Justice Kagan, who had to sit out yet again). While Justice Kennedy provided the fifth vote for the majority's opinion, he wrote a separate concurrence, joined by Justices Ginsburg, Breyer and Sotomayor in part, to explain four things. First, the scope of the Court's decision was very narrow because it assumed the validity of the warrant and considered only the argument as framed by the parties. Second, the complaint raised real questions about whether the warrant, allegedly issued upon incomplete and inaccurate facts, was in fact valid. Third, "it is important to bear in mind that the Material Witness Statute might not provide for the issuance of warrants within the meaning of the Fourth Amendment's Warrant Clause" since it is not based on probable cause that the arrestee has committed a crime. If material witness warrants do not qualify as "warrants" in the sense we're used to, then al-Kidd's arrest would be governed by the Fourth Amendment's separate reasonableness requirement for seizures of the person. Fourth, Justice Kennedy explained that in his view (and perhaps his view alone, since no other Justice joined this portion of his concurrence), whether law is clearly established for purposes of a qualified immunity determination must take into account the level of the official at issue. Where a local official is involved, the law may be clearly established if it is established in the particular locality. However, where a national official is involved and the law is limited or contradictory, the official must be given breathing room to conduct his duties.
Justice Ginsburg penned an opinion concurring in the judgment, joined by Justices Breyer and Sotomayor. While these Justices agreed that Ashcroft had qualified immunity from suit, they took issue with the Court's resolution of the merits of the constitutional issue – which they wouldn't have resolved at all, given the novel issues involved that would have "no effect on the outcome" of the case. Moreover, they were "puzzled" by the Court's assumption that the warrant was valid, since al-Kidd did not admit this and the facts suggested that it may have been invalid. For example, the FBI agents seeking the warrant did not inform the magistrate that they (allegedly) had no intention of calling al-Kidd as a witness, that he had voluntarily cooperated with the FBI on previous occasions, and that al-Kidd's parents, wife and children were all citizens and residents of the US, reducing his risk of flight. They also falsely told the magistrate that al-Kidd was about to board a one-way flight to Saudi Arabia with a first class ticket paid for in cash, when he in fact had a round trip coach ticket. These material misrepresentations and omissions cast serious doubt on the validity of the warrant. Further, whatever the legality of al-Kidd's arrest, if the purpose was merely to assure his continued availability, what "even arguably legitimate basis could there have been for the harsh custodial conditions to which al-Kidd was subjected," including strip and body cavity searches, being bound with handcuffs and shackles, and being held in a lit cell 24 hours a day? Those claims apparently were settled. Additional claims against the FBI agents who prepared the warrant request remain pending.
Not to be left out, Justice Sotomayor added a short concurrence in the judgment, joined by Ginsburg and Breyer, arguing that the Court should not have decided the novel constitutional question presented when it could have resolved the question on qualified immunity grounds alone. She also pointed out that, given Kennedy's concurrence, this case did not solve the question of the "proper scope of the material witness statute or its constitutionality as applied in this case."
Next, in United States v. Tinklenberg (09-1498), the Court "reset" the Sixth Circuit's clock for counting time under the Speedy Trial Act. The Speedy Trial Act requires criminal trials to start within 70 days of the defendant's indictment or arraignment. Certain periods of time are excluded from the 70-day count, including "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." Just before trial, Tinklenberg moved to dismiss the indictment, arguing that his Speedy Trial Act time had run. The district court disagreed, proceeded with trial, and Tinklenberg was convicted. But on appeal, the Sixth Circuit found that more than 70 nonexcludable days had passed. Critically, the Sixth Circuit held that three motions – an unopposed discovery motion, an unopposed evidentiary motion, and Tinklenberg's Speedy Trial Act motion itself – pending for a total of 9 days, were not excludable because they did not actually cause a delay or the expectation of delay, of trial. The Sixth Circuit ordered the District Court to throw out the indictment. (Alas, there is no "Speedy Appeal Act" – Tinklenberg had already served his sentence.)
The Court reversed what it called the Sixth Circuit's "motion-by-motion causation test," but affirmed the Sixth Circuit's order to dismiss the indictment on different grounds (more on this later). Justice Breyer wrote for a virtually unanimous Court. (Justice Scalia, the Chief, and Thomas agreed with all but the non-textual analysis; Kagan sat out.) The Court's task was made considerably easier by the fact that every other Court of Appeals had considered this question, and rejected the Sixth Circuit's interpretation, instead excluding all time during which pretrial motions were pending without looking at the nature of each motion. Looking to the text, the pretrial motion provision is one of several introduced by the phrase: "The following periods of delay shall be excluded." The pretrial motion provision specifies that the period should be measured from the filing of the motion to its disposition; it makes no reference to the trial date or expected trial date. The Sixth Circuit's approach would make the Speedy Trial Act difficult to administer; judges and attorneys would have to guess at whether motions will or will not be responsible for postponing a trial date. Finally, "for those who find legislative history useful," the Act's legislative history contained several references suggesting that Congress intended to "automatically" exclude the periods of delay associated with "normal" pretrial preparations.
But the Sixth Circuit's error in including the 9 pre-trial motion days was canceled out by its error in excluding certain transportation days. The Speedy Trial Act also excludes delays resulting from transporting the defendant to and from examinations and hospitalizations, "except that any time consumed in excess of ten days from the date of an order . . . directing such transportation, and the defendant's arrival at the destination shall be presumed to be unreasonable." In counting excess days under this provision, the Sixth Circuit applied Federal Rule of Criminal Procedure 45(a) and did not count weekend days and holidays. The Court disagreed with this approach. Nothing in the Speedy Trial Act provision expressly incorporated Rule 45(a). And Rule 45(a) itself only stated that weekend days and holidays were to be excluded in calculating periods of time less than 11 days under the Rules, local rules, and court orders; i.e., not statutes. The end result is that Tinklenberg was tried too late and served time he shouldn't have had to serve, but his indictment will be dismissed on his record.
Justice Scalia, joined by the Chief and Thomas, concurred in large part, and concurred in the judgment. Scalia wrote to emphasize the textual reasons for excluding all periods in which pretrial motions were pending, and apparently, to take this swipe: "The clarity of the text is doubtless why . . . every Circuit disagrees with the Sixth Circuit's conclusion. That is the direction in which the causality proceeds: Clarity of text produces unanimity of Circuits – not, as the Court's opinion would have it, unanimity of the Circuits clarifies text."
Finally, in a short per curiam decision, Bobby v. Mitts (10-1000), the Court considered the validity of jury instructions for the penalty phase of a capital case. An earlier part of the instructions told jurors that "When all 12 members of the jury find by proof beyond a reasonable doubt that the aggravating circumstances in each separate count with which [Mitts] has been found guilty of committing outweigh the mitigating factors . . . then you must recommend to the Court that the sentence of death be imposed." A later part of the instructions told jurors that if they found the state had failed to prove beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors, they would "then proceed to determine which of two possible life imprisonment sentences to recommend." The jury recommended the death sentence. On Mitts' federal habeas petition, the Sixth Circuit found that the instructions impermissibly required the jury to first decide whether to "acquit" Mitts of the death penalty before considering mercy and some form of life imprisonment. The Sixth Circuit relied on Beck v. Alabama (1980), in which the Court held that the death penalty may not be imposed where the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, when the evidence would have supported such a verdict. In Beck, the Court reasoned that forcing a jury to choose between conviction on the capital offense and acquittal could encourage the jury to convict for an impermissible reason; i.e., its belief that the defendant is guilty of some serious crime and should be punished, even if had doubts about the capital conviction.
The Court rejected the Sixth Circuit's application of Beck to penalty phase proceedings. At the penalty phase, there is no risk of a false choice between the death penalty and no punishment. In Mitts' case, the jury was appropriately instructed that if they did not recommend the death penalty, they would choose from two life sentence options. Mitts was therefore not entitled to habeas relief.
We'll be back again soon with more decisions.
Kim & Jenny