Our illusory friend is going all medieval over my student and research assistant Daniel Suhr again.
I dislike the implication that one of our students has somehow done bad work or failed to meet some objective standard when he has not, but Daniel is a big boy and capable of defending himself.
Besides, as I have said, politics ain't bean bag and apparently the punctilious rectitude with which one is supposed to treat elected justices of the supreme court does not apply to mere law students. Well, we all know how it is between the powerful and the weak.
More importantly, this series of posts sheds more confusion than clarity on the issues in the state supreme court race. So I am going to have to straighten a few things out. Sorry, but it's going to take some detailed discussion of the law.
Is it fair to say that the Knapp Court failed to follow the US Supreme Court's decision in United States v. Patane?
One of IT's criticisms of Daniel and others relates to a claim that the Wisconsin Supreme Court's (SCOWIS) interpretation of the Wisconsin Constitution in State v. Knapp did not follow the United States Supreme Court's (SCOTUS) interpretation of substantially similar provisions of the United States Constitution in United States v. Patane.
The argument is that there was only a "plurality" decision in Patane, i.e., while a majority agreed on the result, no five justices agreed on the rationale for that result. The implication is that, even if Patane were to be followed, it left SCOWIS free to do whatever it wanted in Knapp. Thus, it is wrong to say that Knapp failed to follow Patane because Patane lead nowhere.
This criticism misses the mark. The likelihood is that Patane did control Knapp and SCOWIS shifted the basis for its decision to avoid that possibility.
In Knapp, the issue was whether the physical fruits of a statement obtained after the police failed to make required Miranda warnings must be excluded. A cop was in Knapp's apartment and talking to him without giving the normal warnings ("you have the right to remain silent, etc."). In the course of this, the cop asked him what he was wearing the night before and Knapp nodded at a pile of clothes on the floor that included a bloody sweatshirt. The sweatshire was later found to be stained with the victim's blood. The cop later admitted that he intentionally held off on giving Knapp Miranda warnings while he was in the apartment.
The case went up to SCOWIS twice and, the first time, SCOWIS held that the bloody sweatshirt and the fact that the blood stains came from the victim ought to be excluded from the trial, relying on the 5th amendment of the US Constitution. (Note the italics; this is important.)It set aside Knapp's conviction.
The state appealed and SCOTUS vacated SCOWIS' judgment setting aside the conviction. It sent the case back to SCOWIS with instructions to reconsider in light of its recent decision in Patane. Although, as noted above, folks make much of the fact that there was no majority decision in Patane, the fact is that five justices held that it was not necessary to exclude physical evidence obtained after a failure to Mirandize a defendant. The plurality argued that it was unnecessary to exclude such evidence if obtained as a result of a Miranda violation and two other justices (Kennedy and O'Connor)thought it unecessary to determine whether Patane's rights were violated or whether there is "'anything to deter' [by excluding the evidence] so long as the unwarned statements are not later introduced at trial." But even they agreed that "[a]dmission of nontestimonial physical fruits . . . does not run the risk of admitting into trial an accused's coerced incriminating statements against himself" and expressed doubt that the exclusion of reliable physical evidence could be justified by the need to deter violations of a defendant's self incrimination rights. Because reliable physical evidence is not testimonial, these five all seemed to agree, it is not necessary to exclude physical evidence even when Miranda has been violated.
Sending the case back in light of Patane was a fairly unsubtle hint that SCOTUS thought SCOWIS got it wrong. Now, maybe you can reconcile excluding the bloody sweatshirt with the views of a majority in Patane. One possibility might be to argue, as IT suggests, that the Miranda violation in Knapp was intentional and, in Patane, it was not. Indeed, when the case came back to SCOWIS, Justice Butler's opinion emphasized this very fact.
But that was uncertain to persuade the five SCOTUS justices who were in the majority in Patane. If Miranda is limited to preventing self incriminating testimony and introduction of physical evidence obtained as a result of an unwarned statement won't risk the introduction of such testimony, then, at least in the view of a majority of the Patane justices, it may not matter that the violation was intentional. (I also think that there is a question as to whether the sweatshirt was actually obtained as a result of the intentional violation, but let's put that aside for now.)In fact, it was one of the dissenters in Patane(Justice Breyer) who wanted to make the introduction of physical fruits turn on whether the cops had, even if Miranda was violated, acted in good faith.
All in all, not so promising.
But here's the important part. We don't know if SCOTUS would have accepted the "intentional violation" argument because, after SCOTUS sent the case back, SCOWIS decided to change up and base its decision on Article I, sec. 8 of the Wisconsin Constitution rather than the 5th amendment. It did so even though, prior to Patane and the SCOTUS remand, no one had thought to make such an argument.
Because the decision was now based on Wisconsin law, SCOTUS can't review it. There is no reason to make this switch unless you think that SCOTUS is not going to uphold your interpretation of what Miranda means here. On these facts, it seems fair to say that Knapp failed to follow Patane.
To the contrary, it seems that the argument that SCOWIS didn't decline to follow Patane is a bit of misdirection.
Is it fair to criticize SCOWIS for not following Patane in Knapp?
The second criticism that IT makes is that SCOWIS doesn't have to follow SCOTUS when it is interpreting a cognate provision in the Wisconsin Constitution. This is the New Federalism that we hear everyone talking about. Although it almost always does so, SCOWIS does not have to interpret provisions in the state constitution in the same way that SCOTUS interprets identical or similar provisions in the US Constitution.
But to say that SCOWIS can do something is not to say that they ought to and there is a vigorous debate among judges, lawyers and scholars as to whether and when this prerogative ought to be taken. So to criticize SCOWIS for not following what appeared to be the requirements of Patane is fair game.
The reason that New Federalism will be an issue in the campaign is that it is generally used by SCOWIS to adopt a more liberal view of the rights of criminal defendants. In fact, the seminal article advocating New Federalism was written by Justice William Brennan in 1977 to urge state supreme courts to adopt a more expansive view of certain rights than the US Supreme Court was then inclined to do.
Daniel Suhr is apparently not a fan of New Federalism. Perhaps IT is. But criticizing SCOWIS for adopting it is not dishonest or inept.
More to come.