If you handle criminal cases, you know there is a good chance that your client will attack the quality of your representation if the jury finds him guilty. The inmate may file a habeas corpus petition in federal court and claim "ineffective assistance of counsel." These petitions usually fail. But sometimes the petition is a close call. This case is one of them.
The case is Gillespe v. Uhler, a summary order decided on June 21. This was a rape trial. The victim said she was raped at around 11:46 p.m. In summation, defendant's lawyer said the time stamp on the surveillance video at the bagel store (where it happened) was 11:44 p.m. In fact, the time stamp said it was 11:46 p.m. Those two minutes would have made all the difference between guilt and innocence. Also, counsel said the victim had vaginal lacerations even though the prosecution's medical expert said on cross-examination that there were no such lacerations. That statement in summation supported the prosecution's theory of the case.
So did defense counsel provide ineffective assistance of counsel? Kind of. The State appellate court did affirm the conviction. Federal courts have to defer to State court rulings, even on constitutional claims like ineffective assistance of counsel. You win the habeas petition only if the State appellate court had unreasonably applied settled constitutional standards. The State courts can get it wrong on constitutional matters so long as they don't really blow it.
The State court did not really blow it here. While the government admits that defense counsel made mistakes in summation, it argues that the State appellate court was within its discretion to uphold the conviction anyway. There was testimony that the surveillance footage when defendant left the bagel store said 11:46 p.m. While the manager of the bagel store said the time stamp may have been off by two minutes, the jury did not have credit the accuracy of the time stamp, so it was able to find that defendant left the store at 11:44 p.m. after all. So the lawyer's statement in summation did not necessarily prejudice the defendant's case. As for the vaginal laceration statement in summation, the prosecution's medical expert said there were no vaginal lacerations. Since the jury was instruction that summations are not evidence, the State appellate court did not irrationally affirm the guilty verdict.
As the Supreme Court winds down another term, the focus is on immigration, affirmative action and abortion. We tend to overlook the other cases that also impact our lives and could result in your being thrown in the slammer.
The case is Utah v. Streiff, decided on June 20. Under the exclusionary rule, if the police conduct an unlawful search and find something illegal, that illegal find cannot be used against you in court. We call it the "fruit of the poisonous tree." But there are exceptions to the exclusionary rule, and this case highlights one of them. Along the way, Justice Sotomayor dissents and tells us what Justice Thomas's majority decision means for the real world.
It all started when the police got a tip about a house that was the site of narcotics activity. The police followed one guy out of the house and approached him. That was Strieff. In the parking lot at the nearby convenience store, the police asked him for ID. The police relayed Strieff's information to a dispatcher, who found there was an outstanding warrant on a traffic violation. Strieff was arrested on that warrant, and in searching him incident to that arrest (normal police procedure), they found drug paraphernalia. Problem was, the initial stop of Strieff was illegal because there was no reasonable suspicion for it. The drug paraphernalia was the fruit of the poisonous stop. But that does not mean it cannot be used against him.
The 5-3 majority notes the exclusionary rule doesn't count in certain instances: (1) if the evidence would have been found through an independent source other than the guy who was stopped, (2) if the evidence would have been found even without the unconstitutional stop (the inevitable discovery rule) and (3) the attenuation rule, which says that "evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that 'the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained."
Strieff gets nailed on the attenuation exception. The Court holds for the first time that the attenuation doctrine applies when the illegal stop results in the police discovery of a valid warrant against the defendant, and the arrest from that warrant reveals something illegal. As Justice Thomas puts it, the issue is whether "the discovery of a valid arrest warrant is a sufficient intervening event to break the causal chain between the unlawful stop and the discovery of drug-related evidence on Strieff's person." The answer is yes. And another exception to the exclusionary rule is on the books.
Justice Sotomayor dissents, noting that outstanding warrants are common, particularly for traffic offenses, and that rulings like this have real-life consequences for people, including humiliating arrests that can include intrusive body searches and more incarceration:
The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer's violation of your Fourth Amendment rights. Do not be soothed by the opinion's technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.
. . .
Writing only for myself, and drawing on my professional experiences, I would add that unlawful "stops" have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers' use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.
Most remarkable for me is the dissent's reference to recent literature about the high rates for incarceration for minority groups. Justice Sotomayor writes:
This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra, at 8, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone's dignity can be violated in this manner. See M. Gottschalk, Caught 119-138 (2015). But it is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95-136 (2010). For generations, black and brown parents have given their children "the talk"— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).
By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.
We must not pretend that the countless people who are routinely targeted by police are "isolated." They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner's Canary 274-283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.
Stephen Bergstein is a civil rights lawyer in Orange County, N.Y. He has briefed or argued more than 200 appeals in the state and federal courts.