I suspect that most of the controversies that arose during last year's Supreme Court election will arise again, even as the campaign itself draws less attention. Challenger Randy Koschnick wants to talk about State v. Knapp, a case in which the court held that a sweatshirt worn by the defendant and stained with the victim's blood should not have been admitted into evidence because it was the "physical fruit" of an intentional failure to provide the warnings required by the United States Supreme Court's Miranda decision.
It's natural that Judge Koschnick would emphasize the case because it is one that has been emphasized by critics of what seemed to be emerging trends on the court prior to last year's election and because he was the trial judge in the case.
Tom Foley, the blogger known as Illusory Tenant, has tried to argue that the criticism of Knapp is inaccurate. Last spring he attacked my former student and RA Daniel Suhr for making the same criticism and now he suggests that Judge Koschnick himself does not "understand" the law.
Putting aside whether Judge Koschnick formulated the problem correctly in the Wisconsin Lawyer interview that Tom cites, Knapp does raise legitimate questions. As I explained in greater detail here, there are two Knapp decisions. In Knapp I, the Wisconsin Supreme Court relied on the US Constitution in throwing out the sweatshirt. Because it had relied on federal grounds, the state was able to ask the US Supreme Court to review the case. That Court remanded the case with instructions to the state supreme court to reconsider in light of a recent Supreme Court decision that had held that the physical fruits of a Miranda violation need not be excluded.
In that case, Patane, five of the nine justices agreed that the physical evidence need not be excluded but they didn't agree on why.
Three of the five said it was unnecessary to exclude such evidence even if it was obtained as a result of a Miranda violation and two other justices (Kennedy and O'Connor)thought it unnecessary 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." They said 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.
Now, it is possible that the Justices Kennedy and O'Connor might have ruled differently had the Miranda violation been intentional, but it seems doubtful. The Siebert case - that Tom regards as important - dealt with admitting the unwarned statement itself.
Still, that's not what made Knapp interesting. On remand, the state supreme court, which had initially based its decision to exclude on federal grounds, switched to state grounds and by doing that insulated its decision from further review in the Supreme Court.
Now, the state supreme court has every right to do that although it usually doesn't. The point is whether it ought to do it and, even if it should, when they should. In this case, the switch to state grounds seems to have been motivated by a desire to avoid what seemed to be the likely application of Patane to allow the evidence. There are rather powerful arguments that state courts ought not to do this, i.e., that they should depart from federal interpretation of cognate provisions only when there is some reason other than disagreement with the court. Others have a different view.
Now, in public debate, all of this is necessarily simplified (i.e., Judge Koschnick's statement that the court "made up" the law)and with simplification, it is always the case that some pertinent fact will be left out.
But that doesn't mean that the criticism of Knapp - or even the way that criticism is discussed in general discourse - reflects some form of ineptitude or misunderstanding.