Wednesday, February 11, 2009

To disagree is not to misunderstand

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.


illusory tenant said...

You've not addressed my main point.

"The United States Supreme Court has been very clear that failure to read Miranda rights does not rise to the level of full-blown constitutional violation."

Is this an accurate statement, Professor?

illusory tenant said...

By the way, it might be helpful for your readers to be able to read my entire blog entry for themselves:

Here it is.

Rick Esenberg said...

I apologize. I thought I had linked. Fixed now.

As for Koschnick's statement, I said I was not commenting on how he phrased his response to JR Ross but on the issue of whether Knapp was an end run around the Supreme Court's interpretation of Miranda and whether that end around is justified. I think that the argument that Knapp II was not decided as it was in order to evade the implications of Patane is just wrong.

But, since you asked about Koschnick's statement, I have no idea what he means by "full blown." If, as you point out, he means to say that Miranda has not been held to be mandated by the Constitution, then he is wrong (although I still think that it would be correct to refer to it as a prophylactic rule).

If he means to say that Miranda violations lead only to the exclusion of nontestimonial evidence because it is designed only to protect an individual's right against self incrimination, he may very well be right.

If a student were to say in class what Koschnick said here, I would ask what she meant. I don't think he expressed himself well and you can criticize him for that, but I am not prepared to question his competence or understanding based on that.

illusory tenant said...

I'm not questioning his competence either.

What I'm questioning is what he's up to with the manner in which he's characterizing the law. Clearly he needs to present it a certain way in order to portray Chief Justice Abrahamson as some kind of off-the-wall radical, which is what he's trying to do.

There are a number of possible explanations for those presentations, but competence needn't be among them (although the other explanations may well give rise to seriously questioning his qualifications for the high office he seeks).

Others of his pronouncements are just downright bizarre: He's "troubled" that the C.J. was hearing oral argument and not gladhanding at an MBA function?

What's up with that?

And his campaign person is promising to publish analyses of 50 decisions so there remains much entertainment to be had.

Keep reading!

Scot1and said...


On one of your previous comments you indicated:

"As far as the criticisms of Judge Koschnick's philosophy, I know nothing about it. I've spoken to the man once. Not that anybody cares, but I haven't endorsed anyone."

I wonder if Judge Koschnick knows that you haven't endorsed him because he links to your WPRI article on the first page of his campaign's website. I realize that it is a link to a WPRI article that you authored last year. But you have to admit his website certainly gives the impression that you are supporting his campaign.

Anonymous said...

Why again do you right wingers want to foist another mediocre legal mind on us?

Koschnick, like Gableman, is another Wisconsin native who apparently went to Hamline for law school because he couldn't get into either Wisconsin or Marquette.

We get it that you want a "conservative" legal mind on the court, but why can't you folks find candidates like Sykes and Prosser to serve? Why another legal rube?

Rick Esenberg said...

Super ID

I saw that a few days ago. I have no objection to people citing my work. I am, in fact, rather fond of it. It's in the public realm and, if for some odd reason, the Chief Justice wanted to data mine my blog to pull out something nice that I wrote about her (while I disagree with her, she is an energetic and very intelligent jurist), she could put it up on her site. I know, for example, that she has posted some complimentary remarks from Dean Kearney who has not endorsed anyone in the race. His view is that he means what he says and, if she wants to draw attention to it, she is free to do so. No one, of course, would care.

Anon 6:16

I have nothing to do with the Koschnick campaign. In face, as WisPolitics reported, a group of people asked me to run against him.
Having said that, I don't think that he is a "legal rube."

Display Name said...

Or to paraphrase the way you put it in the other Hamline grad vs. "very intelligent jurist" race, "Gableman will do just fine."