A Rather Sad Objection

With the recent revelations about William Jefferson (D-LA.) and the FBI search of his congressional offices, it appears that yet another member of Congress will face formal corruption-related charges in the very near future. Of course, this comes in the wake of the bribery convictions of James Traficant (D-OH.) and Randy Cunningham (R-CA.), and is concurrent with the continuing investigation into the Abramoff scandal and recent suspicions that have arising around my own dear representative, Alan Mollahan (D-WV). The reaction on Capital Hill has been one of outrage:

House Speaker J. Dennis Hastert (R-Ill.) expressed alarm at the raid. "The actions of the Justice Department in seeking and executing this warrant raise important Constitutional issues that go well beyond the specifics of this case," he said in a lengthy statement released last night.

Well, ok, so maybe they're not immediately outraged about the same things that people outside Congress are ( House Minority Leader Nancy Pelosi and Senate Leader Bill Frist have expressed similar sentiments). The "constitutional issues" that Hastert refers to supposedly stem from the "speech and debate" clause in Article I, Section 6:

They [senators and representatives] shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

Of course, the text on its face refers only to arrests, and makes no reference to investigations or the execution of search warrants unrelated to a representative's "speech and debate". Moreover, even in the realm of arrests the exception for "treason, felony, and breach of the peace" has been interpreted very broadly, to encompass virtually all modern crimes (see this annotation from the Cornell Legal Information Institute). As former assistant attorney general Viet Dinh explains in the article, "the raid on [Jefferson's] offices itself does not define a constitutional issue."

If I were Hastert, Pelosi, or Frist, I would be more worried about whether my members were selling their offices, and the electoral consequences of that discovery, than trying to stigmatize the FBI for aggressively investigating corruption.

The Post's New Law Blog

I finally got around to taking a look at the Washington Post's new law blog, Bench Conference (gee, no similarity in the name at all to any established blog). Afterwards, I felt a lot better about our humble site. No matter its flaws, our blog will never host discourse like this representative sample on the proposed federal constitutional amendment to ban gay marriage:

And even if the amendment somehow miraculously passed through Congress and the states it is not at all clear that such a change to the Constitution would survive a court challenge, even with a solidly conservative Supreme Court in charge. There is a reason that smart judges around the country have had problems with same-sex marriage bans. They are not always and on their face legal.

Here's a quick refresher on Con Law: if a proposed amendment gets passed by 2/3's of each house of Congress and 3/4's of the states, it becomes part of the Constitution. Period. The amendment could institute limburger as the national cheese, to be consumed at all official functions, and it would still be a valid amendment. The "judges" the Post's blogger refers to are some who have addressed various proposed amendments to various state constitutions, which often have somewhat less straightforward (if also often less onerous) methods of amendment.

I normally dislike those who take potshots at other sites, and try to refrain from doing so myself, but the Post's blog is simply filled with shoddy and silly pieces of legal analysis like the one quoted above. The Post is and remains an excellent source for legal news, but their new law opinion blog is an embarrassment.

Alito's First Big Decision

Today saw a fairly rare occurrence in the Court with the reargument of a Fourth Amendment / exclusionary rule case, Hudson v. Michigan. The outcome will be fairly significant, potentially (always a necessary qualifier when dealing with the Court), to the field of criminal procedure. At the broadest level, the case involves the question of whether evidence obtained during a search that violates the "knock-and-announce" rule must be excluded at trial.

As those who have taken crim. pro. certainly know, the Court has held that the Fourth Amendment requires searches to be "reasonable" not only in the standard of suspicious needed to justify a search (usually probable cause), by warrant or otherwise, but also must reasonable in execution. In the context of the execution of search warrants in private homes, the Court has in the recent past adopted the knock-and-announce rule as a presumed requirement for reasonable execution. In brief, the rule requires that police knock, announce their identity and the fact that they have a warrant, and give the occupants a reasonable period of time to answer the door before entering the premises. Police can forgo the requirement if, essentially, they have good reason to do so. Hudson involves a situation where the police, without good reason, knocked and announced their presence but forced entry into a house immediately after. The police found drugs in the pocket of one of those in the house.

Michigan has essentially conceded that the knock-and-announce rule was violated. But the state argued before the Court that the exclusionary rule should not apply to such violations. Not all violations of the Fourth Amendment trigger the exclusionary rule, and Michigan contends that applying exclusion in cases like Hudson is not necessary or justifiable to deter knock-and-announce omissions. The first argument in the case occurred while Justice O'Connor was still on the Court, and the fact that it is being reargued suggests that the other justices are split 4-4.

Enter Justice Alito. If Alito votes against exclusion, it will represent a continuing trend of the Court moving away from application of the rule for what might be considered especially technical, almost de minimis breaches of the Fourth Amendment. Of course, there are those of the opposite view, including the ACLU and (somewhat interestingly) the Cato institute. An AP story is here.

When Belief Overwhelms Judgment

The Post has an excellent piece up now on the case of executed murderer/rapist Roger Coleman and the activists who believed in his innocence. Coleman was executed in 1992 for the killing of his sister-in-law, but not before a storm of controversy emerged surrounding his claims of innocence. Many journalists and activists bought into Coleman's assertions that he had been unjustly convicted, and his claims inspired a prominent and largely sympathetic 1997 book, May God Have Mercy (one of my profs. in undergrad made it required reading for his legal system classes). Even after his execution, a group of activists continued to assert his innocence, and last year they succeeded in getting then-Gov. Mark Warner to allow modern DNA testing on evidence from the victim's body. These activists viewed this as a tremendous victory, of course; all believed in Coleman's innocence, and at least some hoped that his exoneration would deal a major blow to the institution of the death penalty in general.

The problem was that Coleman was, in fact, guilty. Earlier this year, the test came back as a definitive match.

The Post article provides some excellent insights into the motives of Coleman's defenders. The most glaring question is why so many believed in his innocence even in the face of the powerful (pre-DNA) physicial evidence of his guilt presented at his 1981 trial and continued to believe when less-sophisticated DNA tests, conducted in the 1990's, implicated him in the crime. As one might suspect, none of those involved directly state that their opposition to the death penalty may have affected their judgment about Coleman's guilt, but one doesn't have to do much reading between the lines to come to that conclusion.

I don't intend this post as a comment on the merits of the death penalty (one way or another). But more generally taken I think the story provides a cautionary tale of what can happen when lawyerly judgment is subsumed by "quests for justice" insufficiently checked by reason or concern for fact.

Judge Luttig

The big legal surprise from Wednesday was J. Michael Luttig's resignation from the Fourth Circuit. The Washington Post story on the matter is here; his letter of resignation can be found here. According to the Post, friends of Luttig attribute his decision to financial considerations (he'll be earning seven figures as general counsel at Boeing) and disappointment at not being named to fill one of the recent SCOTUS vacancies.

Of course, the Post's explanations could well be wrong; no one except Luttig can be certain about his reasons. In any event, Judge Luttig (pronounced "loo-tig") was an important intellectual force in the judiciary and a fine judge generally. His retirement is a significant loss to the Fourth Circuit, and those of us who hold Federalist Society-type beliefs should hope that will he continue to produce legal scholarship at a significant pace.

An Update on the Blog's Status and Future

I realize that it's been a while since the last post on the blog, and since my last post in particular. I do apologize for that. When I started this blog, I hoped and tried to maintain a frequency of postings that I now realize was not sustainable for any length of time, given the other obligations of myself and my fellow members of the society. With that being said, over the past month or two the pendulum has obviously swung much too far in the other direction.

With the onset of summer, it is my expectation that I (and hopefully some other members of our group) will have the time and willingness to post more frequently. Speaking for myself, I hope to gradually catch up on my reviews of the Court's slip opinions, as well as continuing to occasionally post about whatever legal issues happen to catch my interest. In the longer term, I have some more ambitious ideas for the blog that may or may not get implemented, depending on how time issues play out.

While the salad days of three or four posts a day are probably gone for good, Semper Liberi will continue its mission of providing discussion and analysis of important legal issues of the day, as well as whatever else peaks our legal interest, at a more sustainable pace. Keep reading, and remember our supercilious latin motto: audi alteram partem.