Anyone who hated Melendez-Diaz v. Massachusetts now finds themselves looking down the barrel of Commonwealth v. Hollister, App. Ct. No. 08-P-1080 (Nov. 17, 2009), in which the Appeals Court has reversed the conviction of a defendant who did not have the opportunity to cross-examine the technician who determined that the loaded gun at issue was a “firearm.”

Melendez-Diaz was, of course, the most important criminal law ruling from the Supreme Court’s last term. As I’ve already discussed (more than you ever really need to know here and here) it was an elegant and, at base, nearly inarguable Scalia decision which held that introducing certifications of drug lab results without the opportunity to cross-examine their authors at trial is a violation of a defendant’s Sixth Amendment right to confront all witnesses against him. There was never any question whether Melendez-Diaz would be extended to ballistics evidence—as, indeed, it recently formally has been in Morales v. Massachusetts, 129 S. Ct. 2858 (2009)—but the real question was always “how far?” Hollister provides an interesting signpost in that direction.

Hollister concerned an unlicensed possession of a firearm charge arising from a loaded gun found in the glove compartment of the defendant’s truck. During a bench trial, the judge had an opportunity to inspect the weapon itself, as well as a certificate from a ballistics technician who had tested the gun and determined that it fit the statutory definition of a “firearm.” This definition includes:

…a pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than 16 inches or 18 inches in the case of a shotgun as originally manufactured.

—G.L. c. 140, § 121 (emphasis added)

This definition necessarily requires that each and every weapon at issue in a gun possession case must be tested by a certified ballistics technician to determine whether the thing is actually operable, just as the chemical makeup of suspected illegal substances must be scientifically confirmed in a drug lab. While the process of testing out guns may be a bit less science-y (if not a lot more fun) than that of spectrographically analyzing dodgy powders, it is still evidence prepared in anticipation of trial which, if properly proven, will provide definitive proof of a significant element of the charge.

It is, in other words, squarely within the kind of evidence which Melendez-Diaz has held must be supported by live testimony at risk of violating the defendant’s Constitutional rights. Under traditional appellate review standards, it becomes the Commonwealth’s burden in each case in which such a violation may have occurred to prove that this Constitutional error was “harmless beyond a reasonable doubt.”

It’s easy to imagine a drug case in which failure to give the defendant the chance to cross-examine the lab tech on his findings might be held to constitute harmless error, and Massachusetts courts have been happy to do so more than once in the months since Melendez-Diaz came down. There are plenty of circumstantial factors—smell, appearance, results of field testing, the presence of scales, cash, and drug paraphernalia, and/or your massive library of live Phish bootlegs, etc.—which may be considered in order to find that any given substance is an illegal drug, and the Commonwealth routinely introduces these right along with lab certificates in such cases. But the only truly reliable way to determine if a given gun is a “firearm” in the statutory sense¹ is to shoot it at something and see what happens. (To be fair, the [admittedly slight] odds that the loaded gun found in the defendant’s truck in Hollister was not actually a “firearm” were probably actually much better than those that one of the plastic sandwich baggies full of white powder in Melendez-Diaz was not some kind of illegal substance. On a purely practical level, there is at least some rationally justifiable reason to keep a fake or broken gun handy—never know whom you may need to scare off, I suppose—at least more so than stashing baggies full of baking soda or whatever).

Hollister was tried and appealed pre-Melendez-Diaz, and really doesn’t have much practical use in a world where prosecutors have already taken to introducing the supporting testimony of analysts of every kind to preclude this issue altogether. Still, it’s a natural and welcome development in post-Melendez-Diaz caselaw, and the Appeals Court has [marksmanship metaphor of your choice here] on this one.

1. Assuming that no one is prepared to testify that they had seen it fired before [↩]

massachusetts

So. Gatesgate.¹

For as eminently debatable as this week’s arrest of Professor Henry Louis Gates and its aftermath may be for people who are properly qualified to discuss the state of race relations in America, I am not one of those people.² But I have been excited to see how much attention this story has brought to the Commonwealth’s colonial-era disorderly conduct statute, and this is as good a time as any for us to review once again why its continued existence is nothing but an embarassment to us all.

Professor Gates, as we all know by now, was arrested for disorderly conduct on his own front porch in Cambridge last week. Police had been called by a concerned citizen who reported a burglary while watching Gates and his driver attempting to strongarm a door to which Gates had misplaced his keys after a trip to China. The police arrived and established Gates’s identity with a photo ID which included the address in which they were standing.

According to the police report, Gates then became upset and expressed his opinions regarding the injustice of the situation, the Cambridge Police Department, and the treatment of African-American men by police in the United States, at which point he was cuffed and arrested for disorderly conduct as a small crowd gathered. The charge was subsequently killed several days later, together with the usual “not our best moment, not his best moment” statement from the Cambridge PD.

Letting this go was the right move for all concerned, obviously. But what if the case had gone forward?

As I have previously discussed as thoroughly as I cared to, the Commonwealth’s disorderly conduct statute is a facially unconstitutional 400-year-old mess that has been preserved only through willful acts of judicial alchemy. Unfortunately, its many vagaries and moving parts have made it a reliable standby in the collective arsenal of law enforcement officers throughout the Commonwealth and, right or wrong, it is all too common to see this charge brought after an arrest in which the defendant has forgone his Fifth Amendment right to remain silent in favor of his First Amendment right to express his opinion about the situation.

The defense’s first strategy would almost certainly have been to move to dismiss the charge. Looking at only one of this crime’s many possible elements, it is highly unlikely that Gates’s alleged conduct (even assuming that it was just as obnoxious as reported) caused or created a risk of “public inconvenience or alarm.” According to the police report, his confrontation with police began in his own kitchen after he had provided them with evidence of his identity; he was then was invited to step out and continue the discussion on his own front porch. Although the police report alleges that a small crowd was gathering at this point, the fact remains that the officers had no reason to be there once they had established that Gates had not just burgled the place, and it seems highly unlikely that that this gracefully-aging gentleman with a cane, a bronchial infection, 12 hours of jet lag, and a Harvard ID was otherwise likely to pose any risk of “public inconvenience or alarm.”³

The “public” element aside, however, there is the basic issue of a citizen’s right to vocally disagree with the police. While most reasonable people can agree that it’s probably best to keep calm in the face of possible arrest, it is also understandable that, as the U.S. Supreme Court has previously held, your average law-abiding citizen is going to get a little worked up if he feels that he is being treated like a criminal for no good reason. Despite the best efforts of the police to work the magic words “tumultuous” and “served no legitimate purpose” into the affidavit in support of the criminal complaint [page 4], Gates’s conduct closely resembles that of defendants in at least two other Massachusetts appellate cases⁴ in which disorderly conduct convictions have been reversed:

In Commonwealth v. Lopiano, 60 Mass. App. Ct. 723 (2004), police had just witnessed the defendant assaulting his girlfriend before they moved in to arrest him; he then began flailing his arms and yelling loudly about his civil rights and such. In reversing his conviction for disorderly conduct, the Appeals Court noted that his behavior was not “extreme” or otherwise threatening, and was not therefore statutorily “tumultuous.”

Commonwealth v. Zettel, 46 Mass. App. Ct. 471 (1999), my personal favorite in this line of cases, held that a difference of opinion with a police officer is a “legitimate purpose” that may provide a proper defense against a charge of disorderly conduct. Although the defendant in Zettel had actually kicked a cop in the shins following an argument with him over her right to a parking spot in Fall River, the court held that her conduct arose from a “legitimate purpose” for causing a scene. But this is consistent: Massachusetts and other jurisdictions have found “legitimate purpose” for causes as diverse as protecting your water supply and attempting to save your marriage, so why not challenging a police officer who is expressing an intent to arrest you?

For as much fun as this little Gedankenexperiment may be, we are still talking about a criminal offense which carries up to six months of committed time. Disorderly conduct charges are regularly and routinely brought against defendants of every description around the Commonwealth—most of whom do not have Al Sharpton on speed-dial—under nearly identical circumstances. Let’s hope that all of this publicity will finally shame the legislature into putting G.L.c. 272 Sec. 53 out of its misery.

1. Note: Nobody should ever call this incident “Gatesgate,” for any reason. [↩]
2. For what it’s worth, I believe that the heartless and disturbingly insensitive prosecution of UMass Amherst student Jason Vassell is a far better example of the point that Gates and his supporters have been trying to make… it was really only the fact that it happened in Western Massachusetts that has kept it out of the conversation. [↩]
3. This is generally defined as “affecting or likely to affect persons in a place to which the public or a substantial group has access.” Commonwealth v. Molligi, 70 Mass. App. Ct. 108 (2007). So maybe a few people could hear him from the sidewalk—but so what? I just don’t see it. “Public” really should mean “public.” As a policy matter, this statute is supposed to preserve public order, not the sensibilities of police officers. [↩]
4. There are many more, but these are the two that immediately came to mind when I read the Gates police report [↩]

disorderly conduct, massachusetts, stupid laws

So you’ve been caught stealing from The Electric Company.¹  Your trial and conviction were otherwise unremarkable, and you’re short on good issues for appeal. Might as well try this:

The defendant lastly contends that the electricity and the gas sold by NSTAR do not constitute “property”…

Commonwealth v. Catalano, No. 08-P-1340 (July 1, 2009)

This is, of course, yet another appellate argument that sounds totally crazy when you say it out loud. Sure, the appellant is saying, maybe the electric company generates, manages, and distributes electricity, but that doesn’t mean that they own it! As The Rascals once never sang: All the world over, so easy to see… Currents of electrically charged particles passing by means of conductors from one body to another just got to be free!

Although perhaps morally questionable, this position is actually legally defensible. On first read, the definition of “property” outlined in the larceny statute really doesn’t seem to include electricity, or anything that resembles electricity.² While it is otherwise remarkably thorough—e.g., ”data while in transit,” “a beast or a bird which is ordinarily kept in confinement”—the statute makes no mention of household utilities as property subject to larceny.

Of course, the court also doesn’t want to be responsible for converting the Commonwealth’s entire electric grid into some kind of wacky Napster-style free-for-all. So, soldering iron in hand, the panel expertly grafts public utilities into the larceny statute’s “personal chattel” provision.

“Chattel” is, of course, one of the grande ensemble of Frenchified lawyerin’ words which came to dominate English common law after the  Norman Conquest. It’s really just a fancy way to say “movable property,” and is best defined as pretty much anything that could logically complete the phrase: “Hey, that guy just stole my _________!” As the Appeals Court is quick to note, gas has been viewed as a chattel subject to larceny in the Commonwealth since at least 1853. But no one had ever bothered to ask about electricity before now.

Bereft of any relevant Massachusetts caselaw, the court reluctantly resorts to actual science. After (presumably) dispatching a law clerk for a field trip to the Museum of Science’s Van de Graaf generator exhibit, the Court reports back that:

…electricity, like gas, also may be stored and conveyed. Storage is possible in a capacitor, and may be transmitted through wires.

Well, that and the U.S. Supreme Court already found that there is a property interest in electricity 70 years ago, as have several other states. So while this “would have been a novel question one hundred years ago,” and “the defendant is correct that this precise issue has never been addressed in Massachusetts”:

…it is a well-established legal principle that electricity and gas are personal property that may be the subject of larceny.

1. Better them than 3-2-1 Contact, which no doubt would unleash the unchecked extralegal vigilantism of  The Bloodhound Gang. [↩]
2. ”The term “property”, as used in the section, shall include money, personal chattels, a bank note, bond, promissory note, bill of exchange or other bill, order or certificate, a book of accounts for or concerning money or goods due or to become due or to be delivered, a deed or writing containing a conveyance of land, any valuable contract in force, a receipt, release or defeasance, a writ, process, certificate of title or duplicate certificate issued under chapter one hundred and eighty-five, a public record, anything which is of the realty or is annexed thereto, a security deposit received pursuant to section fifteen B of chapter one hundred and eighty-six, electronically processed or stored data, either tangible or intangible, data while in transit, telecommunications services, and any domesticated animal, including dogs, or a beast or bird which is ordinarily kept in confinement.” G.L. c. 266, § 30(2 [↩]

Uncategorized

There’s something kind of inherently dodgy about sequels. They’re usually nothing more than a quick buck and a cheap laugh, the faint shadow of what we enjoyed so much the first time around. For every beloved classic that really captures what worked in the original (Terminator 2, The Godfather: Part II, The Empire Strikes Back), Hollywood cranks out vaults of best-forgotten throwaways (see¹ every other Terminator sequel, The Godfather: Part III, The Phantom Menace²).

The Supreme Court’s 5-4 decision in Melendez-Diaz v. Massachusetts [PDF] was released earlier today as a followup to its critically-acclaimed performance in Crawford v. Washington. To the surprise of pretty much no one I know who cares about these things, Justice Scalia’s majority opinion came down almost exactly as I predicted it would a few days ago. (Just a warning: The following might get a little confusing if you haven’t read that post, or any other review of the issues in this case.)

As sequels go, Melendez-Diaz is a formula job. Scalia revisits everything that we loved about Crawford, and once more finds that the Confrontation Clause was intended to mean exactly what it says: a criminal defendant “shall enjoy the right… to confront all witnesses against him.” As of today, this is true even—or perhaps especially?—if those witnesses happen to be wearing lab coats. Melendez-Diaz has emphatically held that evidence of the chemical composition of an alleged controlled substance may not be introduced without the supporting live testimony of an analyst responsible for this testing. It’s a good result, and I’m happy to see it.

I don’t know about you, but I hate it when sequels re-cast major characters.³ While Scalia reprises his Crawford role as the dorky-but-likeable strict constructionist leading man here, Thomas⁴ plays the plucky swing voter, and Kennedy⁵ serviceably captains a grumbly dissent that is a full ten pages longer than the majority opinion. It’s all kind of confusing.

Justice Thomas, still riding high from recent cases in which he was the lone voice in favor of both gutting the Voting Rights Act and giving the government the green light to probe the underpants of our nation’s 13-year-old girls on a whim⁶, filed a one-page concurrence in which he basically agreed with Scalia on every point (nothing new there), but also made it clear for the record that he only supports Crawford as it relates to “formal testimonial” statements.⁷

This was more the kind of thing that I was expecting from Chief Justice Roberts⁸, but Roberts joined Kennedy’s rambling 33-page⁹ dissent together with Alito and Breyer. I would dig into this dissent more, but I’m just not up to it right now, mostly because: (1) caselaw, like history, is written by the winners and (2) I don’t like it very much. While I do agree that Scalia has overstated the efficacy of the so-called “burden-shifting statutes” used in many states, I was otherwise entirely unpersuaded by Kennedy’s arguments. I will note only that the idea that 21st-century chemists are in any way comparable to 18th-century copyists simply doesn’t pass the laugh test, and that I think that he otherwise vastly overstates both the import and the potential impact of this decision even as he indulges in an unbecoming display of haughty pragmatism. Besides, lengthy contextual examinations of what the Framers were thinking at any given moment is the kind of thing that really only works for one of the Court’s current members—and he’s on the other side of this one.

It’s really unfortunate that a case of this significance had to be so closely divided, but it is especially interesting to see who ended up where. The Court’s three (arguably) most “liberal”¹⁰ justices have teamed up with its two avowed conservatives against four of its most consistently moderate thinkers. Like so many Supreme Court-worthy cases, however, Melendez-Diaz presents issues that are far more important than the typical “conservative” or “liberal” distinctions with which the rest of the country has become so obsessed. As Walter Dellinger just noted in a Slate post, these two unlikely combinations of justices can be viewed as “legalists” (what does the law say?) versus “pragmatists” (what will this result achieve?), and Justice Sotomayor can’t necessarily be counted upon to reliably fall upon either side of this split if and when she takes the bench.

Well, anyway. This case may not be as much fun to talk about as today’s Redding “strip-search” ruling, but I’m fairly confident that it will ultimately prove to be far more important, both here in Massachusetts and elsewhere.

1. Or, better yet—don’t. [↩]
2. Yeah, I know: it’s a prequel. So maybe I’m assuming that the Supreme Court and Star Wars attract totally different packs of fanboys. Throw me to the Sarlacc. [↩]
3. E.g., Katie Holmes’s replacement by Maggie Gyllenhaal during the course of the Batman reboot. It’s a small thing, I know, and I actually like Gyllenhaal better—but still: Why? [↩]
4. Yeah, that Thomas. [↩]
5. Yeah, that Kennedy. [↩]
6. Seriously, I wish that were just a stupid joke. Today’s wantonly authoritarian dissent in Redding is one of the single scariest things I’ve ever read in a Supreme Court opinion issued in my lifetime. [↩]
7. Read: Barely agrees with Crawford at all. [↩]
8. This was, after all, the essence of the position taken by his mentor William Rehnquist in his Crawford concurrence, and it is otherwise fairly consistent with Roberts’ brand of moderate conservatism [↩]
9. Including not one, but two appendices full of [mostly pre-Crawford] cases that this decision will allegedly disturb or overturn… [↩]
10. This is relatively speaking: I continue to maintain that there have been no true “liberals” on the Court in my lifetime. [↩]

Criminal Appeals, U.S. Supreme Court, massachusetts

It’s the bottom of the ninth for The Nine as we head into the U.S. Supreme Court’s last full week of the 2008-2009 term. As always, the Court is saving some of the best—and, inevitably, most internally divisive—rulings for last.¹ Here in the Commonwealth, we are eagerly awaiting the results of the most significant Massachusetts criminal case to reach the nation’s highest court this term: Melendez-Diaz v. Massachusetts, 07-591. If it comes down the way that most people seem to be expecting, this ruling may have an a broad and immediate influence on the litigation of drug-related criminal cases.

Luis Melendez-Diaz was arrested in Dorchester during the course of a drug transaction in a parking lot. He and his co-defendants were found to be in possession of a number of plastic baggies of powder of varying consistencies—some of which was white, some of which was yellow. Some, but not all, of these substances were tested by chemists in the state drug laboratory, and the lab concluded that all 22 grams or so was cocaine. The forms certifying these findings did not offer any specific information as to what methods were used to reach this conclusion, exactly how much of the drugs were tested, or any explanation as to the obvious differences in visual appearance between the samples. Pursuant to standard Massachusetts trial procedure, these drug certifications were deemed admissible in and of themselves, and their authors were not called to testify.

In his appeal to the Massachusetts Court of Appeals, Melendez-Diaz argued that these drug certifications were inherently “testimonial,” and therefore constituted inadmissible hearsay without the supporting live testimony of their author at trial. This argument naturally arises from recent developments in the interpretation of the Sixth Amendment’s Confrontation Clause, which provides that “…in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” Like so many of our finest Constitutional principles, this is an ancient and honorable doctrine with a pedigree that predates Roman law, and a reasonably simple one: whenever realistically possible, our society believes that witnesses with testimony that would tend to criminally inculpate a defendant must be brought into court not only to present this evidence, but to be made available for cross-examination by the accused.

Unfortunately for Melendez-Diaz, the Supreme Judicial Court of Massachusetts had already squarely addressed this issue in Commonwealth v. Verde, 444 Mass. 279 (2005), and concluded that drug certifications are merely “business records,” rather than testimonial hearsay. Bound by this precedent, the Appeals Court dismissed Melendez-Diaz’s appeal in an unpublished opinion [PDF] which the SJC declined to review.

While this would almost certainly be the end of the road for any given criminal appeal, Melendez-Diaz had the benefit of some truly impressive advocates who took his case from an unpublished dismissal by an intermediary state appellate court straight to the docket of the U.S. Supreme Court. Inspiring stuff for any aspiring appellate attorney, but why would the Supremes choose to pluck this otherwise-unremarkable little case out of obscurity?

Read more…

1. As summarized over at SCOTUSblog, there are a total of ten major rulings left as of today’s date, including a campaign finance case arising from an anti-Hillary Clinton campaign “film,” a Fourth Amendment challenge to a school’s humiliating strip-search of a young girl, and the politically-charged “New Haven firefighters” Second Circuit case in which Supreme Court nominee Sonia Sotomayor was a panelist. [↩]

Uncategorized

The  Administrative Appeals Office (”AAO”) of the United States Citizenship and Immigration Services (”CIS”) may be the most mysterious appellate body in the American legal system. The AAO is tasked¹ with the review of a wide range of immigration-related decisions that have the potential to seriously affect people’s lives, including the denials and/or revocations of visas, waivers, and other basic immigration issues arising from CIS decisions. It is, in short, the unloved little step-brother of the Board of Immigration Appeals, the better-known body which generally handles appeals from decisions of American immigration courts.

Despite this significant authority, the AAO’s opinions are not formally published, rarely binding on anything beyond the case at hand, and are, in certain cases, unreviewable by a higher court. Its decisions are never credited to any particular judge or adjudicator and, to the extent that they are made available to the public, they are clumsily organized by subject matter in groups of annoying PDF files which are not indexed or otherwise easily searchable.

It is also well worth noting that appellants must remit a non-refundable $585 fee² simply for the privilege of having their appeals filed before the AAO. There’s no telling where all of that money is going, though, especially considering that—unlike any other appellate body in the United States of which I’m aware—the AAO doesn’t even have a website.

But you don’t have believe me. Just take it from the CIS ombudsman, who offers the following dismal summary [PDF]:

The lack of published information on AAO standards and procedures leads customers and stakeholders to question the integrity of the AAO decision-making process.

As of today, however, I have reason to question not only the AAO’s “decision-making process,” but its entire existence.

After careful consideration, I have come to the following rather startling conclusion:

The Administrative Appeals Office has no jurisdiction over anything.

The proof is fairly easy to come by, but you’re going to have to bear with me here: I’m about to get all regulatory on you.

This sordid fiasco begins with 8 C.F.R. §103.3, which outlines the contours of the immigration appellate process. 103.3(a)(iv) helpfully defines the “AAU” (a.k.a. “AAO”) as “the appellate body which considers cases under the appellate jurisdiction of the Associate Commisioner, Examinations.” Okay—so far, so well-regulated. But what kinds of cases?

That’s also pretty straightforward. 103.3(a)(ii) states that “[d]ecisions under the appellate jurisdiction of the Associate Commissioner, Examinations, are listed in Sec. 103.1(f)(2) of this part.”

Awesome! I love it when federal regulations are this elegantly organized. So there’s a whole section that defines exactly which cases the AAO has authority over. Good to know. Let’s take a look at §103.1(f)(2), shall we?

No, seriously. Take a look. It won’t take long, and you’re never going to believe this next part if you don’t.

There is no Section 103.1(f)(2). It seems someone idly plucked the AAO’s entire reason to live from the regulatory shelf, played with it for a few minutes, and forgot to put it back where it belonged.

Seriously, I’m pretty sure that’s what happened. You can find the pre-2004 version, which lovingly details some 55 different types of cases over which the AAO has appellate authority, here. As far as I can tell, however, this section was never restored or otherwise added to any other regulatory provision once it was removed.³

What does all of this mean? Simply put, the AAO has gone rogue. As of this month’s anniversary of the last amendment, it hasn’t had proper legal authority to review any given case for at least five years.

I know this may all seem unnecessarily fiddly and semantic, a sort of nerdly “gotcha” game. But I submit that this is a hugely significant problem. Subject-matter jurisdiction is one of the most essential foundations of a functioning appellate system, especially on the federal level. A court that doesn’t even know what kinds of cases it’s permitted to consider is really no court at all.

I’ve been poking around to see if anyone more important than myself has actually noticed this astonishing loophole, and the evidence is inconclusive. The 2009 version of the official CIS Adjudicator’s Field Manual still cites the missing regulation (see Sec. 10.8) in its brief discussion of which cases may be appealed to the AAO. The CIS website still enumerates a long list of issues over which the AAO has jurisdiction which appears to be drawn from the missing provision. And the instructions which accompany the I-290B form used to file appeals before the AAO unhelpfully state only that the AAO may review decisions arising from any immigration proceeding “in which the Board of Immigration Appeals does not have appellate jurisdiction.”

If this broad assertion of jurisdiction by exclusion suggests a sort of implicit recognition of the simple fact that the AAO has no enumerated authority whatsoever, the recent ombudsman’s statement quoted above manages to wiggle around the whole issue entirely:

“The AAO exercises appellate jurisdiction over the matters described in 8 C.F.R. § 103.1(f)(3)(iii) (as in effect on February 28, 2003)….”

Oh, c’mon. Maybe that was the best they could do under the circumstances, but it’s still undeniably sneaky. If you believe that one, try this:

It is clearly apparent that the Framers of the U.S. Constitution did not intend for women to enjoy the right to vote, and did not provide for any possibility that they would be permitted to do so. There is, therefore, absolutely no Constitutional support for the proposition that women have been granted the franchise. (See Constitution of the United States of America, as in effect August 17, 1920).

See how that works?

I wish I were missing something here, but I am left with three inescapable conclusions:

(1) The AAO has been legally invalid since 2004, but

(2) We’re stuck with it anyway, and don’t really have any choice but to continue to bring our cases before it, because

(3) No one cares.

1. Well, maybe not exactly, but more on that in a minute… [↩]
2. This has to be the most expensive appellate filing fee in the Western world. By way of comparison, this is exactly $135 more than the filing fee for a typical immigration appeal before the First Circuit Court of Appeals [PDF] and a full $285 more than the fee for initial docketing of a petition for writ of certiorari to the U. S. Supreme Court [PDF]. [↩]
3. To be fair, it appears that there is a possibility that the AAO’s appellate authority was taken out of the regulations and “delegated” to the AAO by DHS pursuant to the powers granted it by 103.1(a) in something referenced in several sources as “Delegation Memo 0150.” However, this memo is not available to the general public (I’ve looked), and my position remains that appellants should be properly placed on notice of the AAO’s appellate jurisdiction through regulatory means, especially for as long as 103.3(a)(ii) continues to state that this information is actually available in the regulations and CIS’s official secondary sources continue to reference this defunct provision. Federal regulations are subject to public review and criticism—the so-called “notice and comment” rulemaking process so beloved of administrative lawyers. “We have jurisdiction over your case, and we have this secret internal memo to prove it” is the kind of thing one might reasonably expect to hear before being exiled to a Siberian gulag. If DHS has actually redefined the AAO through such a memo (and, again, there’s really no way for me to know if they have actually done so) apart from the regulatory process, I would submit that this represents an attitude to administrative lawmaking that has no place in a functioning constitutional democracy. [↩]

Immigration Appeals, stupid laws

“…the foreigner, and the fatherless, and the widow, who are within your gates.” —Deuteronomy 16:14

There are more than a half-dozen Bible verses which extend equal status to immigrants and widows in the same breath, and it logically follows that the authors intended for each group to be protected and respected equally.¹

This month has seen justice for both the foreigner and the widow in relation to appellate topics previously covered in this space:

(1) Attorney General Eric Holder formally vacated [PDF] former AG Michael Mukasey’s midnight denial of immigrant’s rights to counsel in removal proceedings [PDF] and has ordered the DOJ to look into reasonable, Constitutionally-friendly guidelines on this front.

(2) DHS Secretary Janet Napolitano has punted the “widow penalty” issue for the time being by placing a two-year moratorium on the deportation of widow(er)s and any children under 18 who may otherwise be adversely affected by this penalty. This is a fair solution, and represents about the most that she could do independent of Congress or the courts. As I have previously noted, two years should be enough time to give Congress and/or the Supreme Court to do something about this, and I am now fairly confident that justice will be done on at least one of these fronts within the next year.

1. Not that anyone at FAIR particularly cares what the Bible actually says. There’s really no looking back once you’ve been certified as a hate group, after all. [↩]

Uncategorized

Great stuff coming down on every level these past couple of weeks, more on which maybe later. But I have to say a few things about the First Circuit’s thoughtful and eminently humane ruling in Taing v. Napolitano (May 20, 2009)(PDF), which has elegantly struck down the “widow penalty” here in New England.

This “penalty”–and there really is no other word for it–is probably the single harshest and uglist rule in our present immigration system. Here’s how it works:

Marriage¹ to a U.S. citizen is one of the simplest ways to gain residency to the U.S., as it should be. Presuming they entered the country lawfully and otherwise meet the requirements, non-citizens are generally eligible to have their American spouses file visa petitions on their behalf to request that Immigration recognize and validate the marriage as a basis for permanent residency.

But what if your spouse dies either during the increasingly-lengthy period of time that it takes the government to process your “immediate relative” petition or before your second anniversary? The answer, at least under current law in eight of the eleven circuits, is as shocking as it is shameful: nothing. Your petition is deemed abandoned and your opportunity for a new life in the U.S. has died with your spouse. You might be grieving, but the government wants you leaving.

By comparison, if your union goes the way of at least half of American marriages within the same two-year period, you may be still be able to successfully “self-petition” to pursue residency even without your ex, provided that you can prove that you originally got together for the right reasons.

So it’s all pretty arbitary. Marry a virtual stranger in Vegas on a whim, and you can still roll the dice on a chance at residency even after the inevitable divorce six months later. Fall for a Marine who dies a hero in Iraq while you’re waiting the many long months that your petition is pending, and you’ll be eligible for… forcible deportation. Within days of his funeral.

Something this stupid and cruel can’t (we can only hope) stand for long, and the Sixth and Ninth Circuits have already ensured that it won’t in their respective jurisdictions by finding that recently-deceased spouses can still be “immediate relatives” under the proper circumstances. As of this week, the First has joined that list.

It’s not only a good opinion, but it’s kind of a fun one. While the Taing court could have disposed of this issue in short order, why simply grant an appeal in six pages when you can grant the appeal and beat up on the Department of Homeland Security for twenty-six?

The government’s arguments really are the most fascinating thing about this case. Here’s a small selection of them, with the court’s responses:

1) You can’t have a dead “spouse”! Well, sure. With the possibly exception of the several dozen women to whom Larry King pays alimony, most people can generally accept that you can’t marry a cadaver. But you certainly can have previously married someone who has since died. The government seems baffled at this distinction; it cites, in a deliciously perverse twist, the definition of marriage outlined in the federal Defense of Marriage Act (”DOMA”) in support of its attack on the recently-married. As the court is happy to point out, however, DOMA’s sole purpose was to kill the hopes of living people in loving and committed relationships of being recognized as equal to their similarly-situated straight friends. Congress may (and does) have an unhealthy obsession with marriage², but even its most prurient minds do not appear to have anticipated the possibility of post-mortem matrimony.

2) “But Webster’s says….” Well, okay, the government doesn’t actually pull out every eighth-grade debate team member’s favorite tactic. But the First Circuit would like you to know that they do own a dictionary. A law dictionary. Appellate pro-tip: If your argument can be overcome using nothing more than a 19-year-old copy of Black’s³ and the reading comprehension skills required to spend an enjoyable morning with “My Pet Goat,” you’re doing it wrong. The legal definition of “spouse” includes surviving spouses. Full stop.

3) Let’s put on our statutory construction beanies! Okay, sure. But four can play at that game. Most of this opinion rests on complex statutory interpretation and, for as delightfully wonky as it all is, I can pretty easily distill the court’s response to the government’s arguments in this direction down to two words⁴: EPIC FAIL.

4) The Patriot Act! No, really. Sure, it was mostly just an opportunistic, hastily-assembled laundry list of questionable things that law enforcement had always wanted but had been afraid to actually ask for, but maybe it wasn’t all bad: Congress tucked in a special provision which permitted surviving non-citizen spouses of 9/11 and other specified terrorist attacks the opportunity to self-petition for residency within two years. So if this right had to be specially created through legislation, the government argues, it must not have existed before. Q.E.D.? Well, no. Not only was this special provision kind of, y’know, special, but it also didn’t actually require that the American spouse have actually filed a petition.

It goes on. The overall effect is that of a sort of all-you-can-eat smorgasboard of crazy, from which the court seems to enjoy picking up healthy samples–if only to sniff them and make funny faces and gingerly return them to the table. It even loosens its belt and helps itself to some public policy for dessert.⁵ The final page kicks off with what will have to be my favorite appellate sentence of 2009:

Although we rest our holding on entirely legal grounds, we note that our decision comports with common sense.

(What, no citation?)

So, anyway. This is a great day for Mrs. Taing and all surviving spouses in Massachusetts, Rhode Island, New Hampshire, Maine, and Puerto Rico who will be protected by this decision–but what about the rest of the population not fortunate enough to live in the First, Sixth, or Ninth Circuits?

As the Taing court reminds us: “We must assume that… Congress did not intend an absurd or manifestly unjust result.” How charitable. (See DOMA, supra.)

Congress may well solve this problem⁶ through a bill recently sponsored by both of my senators, among others–but maybe not before the Supreme Court hears the case of Osserritta Robinson. Mrs. Robinson tragically lost her husband in the 2003 Staten Island ferry crash, and the Third Circuit upheld her order of deportation to Jamaica based upon a finding that she was no longer an “immediate relative” of an American citizen. Her request for review of this decision is now before the Supremes.

1. ”Opposite marriage,” that is. [↩]
2. Especially as it relates to the prospective union of man and box turtle… [↩]
3. The court quite sensibly consulted the 1990 edition to see what the definition of “spouse” would have been at the time that Congress last revised the controlling law [↩]
4. spoiler alert! [↩]
5. Seriously, the concluding section of the opinion is actually titled “Public Policy.” Not that there’s anything wrong with that, and certainly it sounds innocous enough. But public policy arguments are typically the last resort of idealistically-minded dreamers like me who (1) are otherwise running on empty, argument-wise and/or (2) would rather get out and invent some new laws rather than bother reading the old ones. For this court to finish up with a whole page on nothing but policy arguments is totally out of character, and in a really gratuitous way. I found it to be just a little like finishing the autobiography of, say, Mohatma Ghandi only to find a tacked-on epilogue called “I LOVE BEER!!!” [↩]
6. And when was the last time you heard anyone say that? [↩]

Uncategorized

I had always thought that the Supreme Court’s ruling in New York v. Belton, 453 U.S. 454 (1981) was a little much. As of today, I guess they’ve finally agreed with me.

Those who have had the pleasure of an American criminal procedure course will remember Belton as the source of the “search-incident-to-arrest” corollary to the “automobile exception” to the Fourth Amendment’s general rule against unwarranted searches and seizures. Simply put, the Belton rule permits the passenger compartment of a suspect’s vehicle to be searched on-site at any time after a lawful arrest without a warrant.

This exception is usually justified on the grounds of officer safety, and that’s understandable: we want to be sure that police officers are able to quickly locate and lock down any weapons that might be at hand during the course of an arrest. But Belton’s unnecessarily broad wording has openly permitted searches that could never reasonably be explained that way. Realistically, unless you’ve collared yourself a Jedi,¹ there’s really no conceivable way that a handcuffed suspect locked in a police cruiser could possibly get to anything in his car that could be used to hurt you, and that seems to be the point at which most of these searches are performed. The “search-incident-to-arrest” element of the automobile exception has always seemed like a problem disguised as a solution to me, and a whole pile of academics and other people far smarter than me have been trying to get the Court to re-examine it for decades.

In a closely-split decision today in Arizona v. Gant (No. 07-542)(PDF), Justice Stevens² has all but overruled Belton.

The facts aren’t all that important, but I should note that the defendant had been arrested for nothing more than driving on a suspended license and was safely in custody by the time that his car was searched and a small quantity of cocaine found. During the course of the hearing on the motion to suppress brought prior to trial, the arresting officer assured the Court that the search had been conducted under these circumstances “[b]ecause the law says we can do it.”

Well, not anymore. Stevens has upheld the Arizona Supreme Court’s holding that this search was un-Constitutional, and that Belton was significantly overbroad. Here’s my favorite part:

The experience of the 28 years since we decided Belton has shown that the generalization underpinning the broad reading of that decision is unfounded. We now know that articles inside the passenger compartment are rarely“within ‘the area into which an arrestee might reach,’” and blind adherence to Belton’s faulty assumption would authorize myriad unconstitutional searches. The doctrine of stare decisis [Latin, I believe, for "What part of that last ruling didn't you understand?"] does not require us to approve routine constitutional violations.

Nice!

Best I can tell from my first read of Gant, Stevens has limited Belton to situations in which the suspect either has access to his vehicle at the time of search and/or the search would yield evidence directly relating to the crime for which the suspect was arrested.

Sounds about right to me, but where does this leave us? As Scalia grumbles in his mostly-reasonable concurrence, Stevens isn’t exactly overruling anything³ but only cinching Belton up a few notches. I kind of agree with Scalia⁴ that the best course of action would really be to ditch (rather than refine) Belton and its progeny altogether and go with an alternative rule: vehicle searches after arrest may only be conducted when seeking evidence toward the crime for which the arrestee had already been arrested. This logic in this is kind of inarguable on its face: If an officer already had probable cause to arrest a driver for certain crimes,  why shouldn’t there be probable cause to search the same person’s immediate area after arrest for evidence⁵ of that crime? But I’m not totally sold on this, as it still has significant potential for abuse and is almost certainly motivated by Scalia’s well-known career hatred for the exclusionary rule.

But, still: good enough for now. Gant is an encouraging and long-overdue development in Fourth Amendment caselaw, and I’m happy to see it.

1. And if so: How? [↩]
2. Stevens sat out Belton, instead signing on to a concurrence that was obviously hesitant to endorse it. [↩]
3. The Alito/Roberts/et al dissent disagrees, arguing that there is “no doubt” that Gant overrules Belton, and dissents almost entirely on stare decisis grounds. [↩]
4. As combinations of words go, I’ve probably uttered this phrase about as often as I have “Please pass the mushy peas, because they are delicious.” [↩]
5. Drugs and/or guns, 95% of the time [↩]

Criminal Appeals, U.S. Supreme Court

Despite Boston federal District Court Judge Nancy Gertner’s best efforts, as of yesterday the First Circuit has ensured that no one’s listening in¹ for the Tenenbaum file-sharing battle.

In a sort of gratuituously comprehensive 25-page opinion released only eight days after oral argument on this question, the First (via the charmingly and “incurably lexiphanic” Selya, J.) came down unanimously yesterday against permitting Joel Tenenbaum’s District Court proceedings from being broadcast live over the Internet.

For as much as I’d expected this outcome, I was also amused to see that the First was not immune to the influence of the unstoppable craziness that has plagued this case.

It all starts, as so many appeals must, with

JURISDICTION

For the second time of which I’m aware, it appears that a party has failed to properly argue a major issue in this case. Last time it was the plaintiffs’ failure to cite a 1st Circuit rule which was directly on point; here, Selya directly suggests that the defendants forgot to raise the tiny little matter of the Court’s actual authority to issue a writ of mandamus in the first place.²

Writs of mandamus³ are, as Selya himself notes, “strong medicine,” to be prescribed only when absolutely necessary. Courts which step in to issue these orders are inevitably taking a kind of offensively parental role in the proceedings, which is why plaintiffs generally must show that they are facing “irreperable harm” if the court doesn’t act.

Here, there was a strong argument to be made that the plaintiffs would suffer no such harm were the Court to deny the request, but this was only raised in a couple of amicus briefs submitted by interested third parties.⁴ For as unusual as it is for an appellate court to address arguments raised in non-party briefs, the Court found this particular argument to be significant enough to notice for exactly the amount of time that it took to dodge it entirely.

See, it turns out that the appropriate relief here was not a writ of plain old “general mandamus,” but rather a super-special writ of “advisory mandamus.”

Don’t feel bad: I’d never heard of “advisory mandamus” either.⁵ Maybe we both missed Civil Procedure that day?

Whether we’ve heard of them or not, writs of “advisory mandamus” may be issued in any matter which presents any “systemically important issue as to which this court has not yet spoken.”⁶, and the “irreperable harm” standard is not required for this highly unusual form of relief.⁷ Having whipped out this procedural trump card, the First breezily finds that it “inexorably” has authority to consider issuing such an order, and moves on to

THE DISTRICT COURT RULE

Pursuant to Massachusetts District Court Rule 83.3 [fair warning: link goes to sizable PDF], no cameras or recording devices of any kind may be allowed into the court “except as specifically provided in these rules or order of the court.” While I (and, apparently, Judge Gertner) would basically read this language to mean “except for specific circumstances enumerated within the text of this rule⁸, or at any time at the discretion of the presiding judge,” the First sees it otherwise. After several long pages of statutory construction and analysis, the Court conclusively determined that the phrase “or order of the court” is not a generalized “catchall” which would grant the District Court the kind of discretion that it exercised here, especially given that this rule was further strenghtened and augmented by a written policy adopted by the First Circuit in 1996 which prohibits the broadcasting of any court proceedings in federal courts under the jurisdiction of the First.

In light of all of this, the District Court’s decision to permit webcasting of the proceedings was held to have been “palpably erroneous,” and webcasting was prohibited accordingly. Which brings us to

THE CONCURRENCE

For as inevitably disappointed as Tenenbaum’s legal team were by this ruling, they can still take some hope from Justice Lipez’s concurrence. He reluctantly agreed with the majority that the proposed webcast was not legally permissible, but added the following eminently reasonable caveat:

However, this inescapable legal conclusion does not discredit the policy concerns that animated, at least in part, the district court’s decision. Indeed, in my view, there are no sound policy reasons to prohibit the webcasting authorized by the district court. Therefore, this case calls into question the continued relevance and vitality of a rule that requires such a disagreeable outcome.

Lipez further points out a ridiculous irony that I’d meant to mention earlier: the oral arguments from this appeal were broadcast on the First’s website in MP3 format within 24 hours of the hearing for anyone to listen to. (”Disagreeable outcome,” indeed!)

Oh, and there’s

ONE FINAL IRONY

that I’ve got to mention before I can let all of this go, although I’m certainly not the first to notice it.

Throughout this fun little drunken punchup of an interlocutory appeal, the plaintiffs have been working directly against their own stated interests in this case. Given that the industry has as much as told us that they are throwing everything they’ve got at Joel Tenenbaum and his co-defendants for the express purpose of making an example of them for the unwashed music-thieving masses, what conceivable reason could they possibly have to turn down a chance for more free publicity from this already very-public trial?

1. Until manager Brian Message is taken off the witness list, every post on this case will be packt like sardines with Radiohead references. Token apologies to non-fans. [↩]
2. Okay, I’m taking his word on this one: I haven’t actually read Tenenbaum’s brief. Was this a fair assessment? [↩]
3. Latin, I believe, for “shut up and take it” [↩]
4. The music industry’s “best” argument toward this particular point, raised in its original briefing, was that “[t]he broadcast will be readily subject to editing and manipulation by any reasonably tech-savvy individual.” Translation: “Oh noes! They’re gonna make us look silly on YouTube!” [↩]
5. And neither has Wikipedia, for what that’s worth. [↩]
6. Proposed future advisory mandamus topics: Compelling McDonald’s to bring the Butterfinger McFlurry to New England, firing all those whiny Mass Pike tollbooth operators who skipped work on Easter, slashing ticket prices at Fenway, and acting quickly to prevent the looming national disaster presently posed by Limp Bizkit’s impending reunion and comeback tour. [↩]
7. ”…[p]roper occasions for employing advisory mandamus are hen’s-teeth rare: it is reserved for blockbuster issues, not merely interesting ones.” In Re Bushkin Associates, 864 F2d 241 (1st Cir. 1989)(Selya, J.)(Nancy Gertner, Esq. for petitioners) [↩]
8. There aren’t many. [↩]

1st Circuit