There’s no way I’m going to invite a scorched-earth debate on any this or any of the other pro-defense decisions. In fact, I’m happy to make this my last comment on this topic before I take some time to bone up on the recent con and con crim cases…

but not without asking this: If the eighth amendment is to exist at all, how does the court avoid drawing a line, or as you seem to argue, “legislate”? And how can they avoid looking at available nonlegal data to arrive at legal definitions of “cruel” and “unusual”?

Sure, we could draw the line differently, but how to draw it with any greater faith to the Text?

Textualism may offer us the worthy value of judicial conservatism, but it does not solve the many latent and unavoidable ambiguities in constitutional interpretation. Even judges who are loath to “legislate”, have to make these decisions and will, based on precedent, their views, experience, and extrinsic information.

I think you’d do well to examine more carefully Justice Scalia’s record on criminal procedure issues. You sound like you’re pretty well-versed in constitutional law, and in criminal constitutional law in particular, but I think your statement here is . . . perhaps a bit of mild hyperbole?

Off the top of my head, Scalia is a solid champion of the right to confrontation (e.g. Crawford or the decision on child witnesses testifying via closed-caption TV); ditto the right to a jury trial (see Blakely and Apprendi) — and didn’t he write the opinion holding that thermal imaging is a Fourth Amendment search? And, to the extent that free speech and criminal issues intersect (like with flag-burning) he is a staunch free-speech advocate. I think it’s unfair to call him “almost universally pro-prosecution.”

As to your criticism of my own mild hyperbole, if you felt it was misleading, then certainly you have corrected it. I don’t think that anyone who reads me on a consistent basis mistook my tone. And I disagree that “the truth is that pro-defense decisions constituted a small if significant minority among the Rehnquist court’s criminal decisions.” Perhaps if you were to catalogue them by number, but in terms of significance, there’s a real debate you could have there. The radical (and poorly reasoned) decisions tossing out the death penalty for retarded and juvenile defendants; the immense disruption caused by Blakely and Crawford; the upholding of Miranda despite its complete lack of a textual basis (as even you appear to concede); the tossing out of dozens or hundreds of convictions due to Stogner; etc. — these are very significant developments.

All of the other decisions we have been discussing are drawn from sounder inferences drawn from the constitutional text.

Not in my opinion. In my opinion, the decisions striking down the death penalty for retarded and juvenile defendants are ideological, results-driven, and wholly lacking in principle. In short, they’re crap.

And if the entire case hinges on a confession, then how reliable/valuable is that confession really?

Depends on the facts.

Glad to see your response - you hit on all the flipsides of my arguments, so for the most part, I accept your points and lay out some clarifications and countervailing interests.

Hyperbole. I have not been defending Cohen, and will concede (sigh) that he is misleading on the 3 Lions’ position in Johnson and Dotson. It’s bad journalism, and his point could have been made without that kind of misdirection. But as far as the opinions of the 3 justices, the pro-defense exceptions you mention highlight the rule. A few exceptions notwithstanding, the position of those 3 is almost universally pro-prosecution. Says me - forget Cohen.

Anyway, most of your LAT critiques are revealing and, taken together, disturbing. I sense the beginnings of a textbook on critical reading, if schools ever get into the business of teaching such skills.

That said, I can’t give you a pass on the “a decision or two” statement - at least, not if we’re applying the same journalistic standard - admittedly a big if. It may simply be that rhetorical nuances do not always digitize well, and it wasn’t, in form, an assertion of fact. However, it could have easily been accepted as the truth, or close to it, by a casual reader. So I think the hyperbole was itself deceptive, given that (a) you were relying on it to make your overall legit point about the deception of the op-ed, and (b) the truth is that pro-defense decisions constituted a small if significant minority among the Rehnquist court’s criminal decisions.

“Pro-defense.” You: “The issue is not so much whether these decisions are right or not as it is whether they are pro-defendant or not.”

I agree, and am not a cheerleader for every pro-defense decision, but we were initially counting cases, not discussing the merits - I was just counting. I applaud Booker, Blakely, and Johnson in particular, but feel more relief than elation over any of them. Blakely in particular took some serious institutional cojones, no denying it. Leading up to this year, two things, mainly, were disturbing to me about federal criminal jurisprudence: (1) the appropriation of judicial discretion in sentencing by the two stronger branches of government (and suggestions of pressure tactics on the judiciary), and (2) the erosion of Fourth Amendment rights. I think defendants’ interests on both of these issues are based on the Constitution and sound precedent. I also think that both #s 1 and 2 are traceable to and perpetuated by harmful drug enforcement policies more than anything else. But on issue #1, believe that, among other things, separation of powers was at stake, and on that basis think they invoked the ghost of John Marshall and did the right thing. On #2, I think the Fourth is having its death by a thousand cuts, and many of those cuts have come since 1986, when Rehnquist became CJ. (Mea culpa: I cited a case or two from 1984-85 in my long list.)

Miranda, Dickerson, and Textualism. I concede, as does the Court (essentially), that these decisions wither under anything resembling a textual approach. My only defense of Dickerson is stare decisis. However, these are special cases, and it’s telling that you used them to respond to my textualism rant (“rant”=disclaimer). All of the other decisions we have been discussing are drawn from sounder inferences drawn from the constitutional text. If they went the other way, it would merely be the opposite inference, but no closer to the text. There are myriad examples of this ambiguity, and Miranda/Dickerson are exceptions of clear divergence from the text that highlight the rule.

So I agree that Textualism’s claim as a “four corners” style reading of the Constitution has a few reforms to offer, but nothing like the wholesale housecleaning implied by the Textual battle cry against “activist judges”. I credit Karl Rove with introducing that particular slander into the vernacular. I think Scalia has painted himself into a corner by implying that all issues are simply a matter of faith to the text. He has increasingly had to contort his logic to stick to his real agenda. I think this actually brings out some of his intellectual skills, but bars him from greatness. Rehnquist himself has a lot of integrity as a conservative, and Thomas is downright dogged in his refusal to read ANYTHING into the text, which I kind of respect but can’t say I find a useful or sustainable approach to most questions.

But Miranda, that textualist stalking horse, was conceived as a tool for a frustrated judiciary on the opaque issue of voluntariness. I make this point merely as an apologist to show that the Miranda court was responding to a widespread problem of uninformed coercion law enforcement. We are still left with serious problems with the abuse of confessions, now with the additional problem of “abuse” of Miranda by defendants who don’t have a legitimate claim on voluntariness per se. But on the plus side, thanks to TV, every citizen “knows their rights.” Priceless…

The problem is virtually solved by videorecorded interrogations. We should all be actively in favor of this, no? And then Miranda should be laid to rest. From a strictly political/nonlegal POV, the legislature should start mandating videorecorded interrogations, and THEN test Miranda.

Exclusionary Rule vs. Cause of Action. You: “The principle of letting a guilty person walk before convicting an innocent one has to do with our high burden of proof, and putting the risk of error on the state. It has absolutely zero to do with the Fourth Amendment.”

Actually, the “better to let the guilty walk” philosophy/judicial policy, as both a reasonable doubt requirement AND as a ground for exclusion, goes way back. On the exclusion issue, there is Mapp, of course. But Mapp was no maverick decision. Weeks (1914): “If letters and private documents can thus be seized and held AND USED IN EVIDENCE against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.” (Caps added)

And even further…Boyd (1886): “[The Fourth and Fifth Amendments] apply to all invasions on the part of the government and its employes of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property . . . . Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man’s own testimony or of his private papers TO BE USED AS EVIDENCE to convict him of crime or to forfeit his goods, is within the condemnation . . . [of those Amendments].” (Caps added)

These decisions go straight to the legitimacy of exclusion, and the elevation of the rights of the innocent over the imprisonment of the guilty, in the American system. For the reasons I stated in my last comment on this issue, I still think lawsuits are a woefully toothless solution, do not restore the LIBERTY interest to victims of government carelessness, overreaching, and malice, misplace the burden on victims to sue, do not provide the same level of deterrence, threaten to bankrupt our cities, encourage litigiousness among inmates, etc…any one of these reasons on its own would be a big problem.

Consider also that the Fourth Amendment will look far more reasonable after the reform of the drug laws. The focus on contraband that is the essence of drug cases means that suppression of physical evidence makes or breaks these cases in a way they do not in most other cases. It also perpetuates the find-and-bust cycle of drug enforcement that places a unique premium on intrusion, search, and seizure upon a minimum of cause. The Fourth Amendment is essentially a warrant requirement. To satisfy the requirement of reasonableness, the issue is placed when possible in the discretion of a judge. Most of the detection, detention, search, and arrest decisions have drawn and redrawn the limited exceptions to the warrant requirement such as plain view and exigency. These “exceptions” lend themselves to limitless expansion IF we accept a priori that the drug war is a good idea. Since the legislature makes that decision, the judiciary properly accepts the legitimacy of the policy, but has to bend these constitutional protections to do so, including:

(1) Letting “any indicia of drug-related activity” under the umbrella of reasonable suspicion, leading to a right to search not only for weapons but for anything down to the size of a pebble of crack, i.e. carte blanche on the grounds for, and scope of, search and seizure;

(2) Accepting that exigent circumstances exist anytime suspected drugs could be flushed or otherwise disposed of, i.e. no warrant, no PC, no knock/announce, no apology for concussion grenades in the wrong home…

These are just examples of how the only requirement still placed on police is knowing what to say in court. This is where I join the conspiracy theorists who say that the drug war is only being waged because a variety of public and private players are each acting solely in pragmatic self-interest for the expansion of their own power, and that rational public policy has left the building.

“And don’t kid yourself: criminals go free all the time as a result. “

The scenario you described in this paragraph depicts all the law enforcement players screwing up: the cop forgets to say, and the prosecutor forgets to remind him to say, “the right thing.” Whose fault is that? And if the entire case hinges on a confession, then how reliable/valuable is that confession really? I’ll give you at least 50%, but no more than 85%. As with the practical stakes of all these issues, it’s a tradeoff. I know exclusion springs the guilty, though in my experience most judges won’t exclude evidence unless the police were obviously on a fishing expedition or otherwise engaged in very bad behavior, and even then probably not where the crime is a serious felony. But I will concede that suppression sometimes plays big in serious cases. But whatever the police are doing wrong, if they’re doing it to the guilty, they are doing it to a lot of other people as well. There is a lot of collateral damage in letting all constraints on law enforcement slide, and it falls in a very discriminatory way - don’t kid yourself about that.

You’re obviously a smart guy, and I’ve enjoyed the discussion, even though I haven’t had much time to participate in it. I’ll take issue with some of your points:

The authorities are going for arrest and conviction. Exclusion denies them that. There is a perfect symmetry of deterrence against misconduct. The American system lets a guilty person walk before it will convict an innocent one. Your suggestion says convict em all, and let them sue the state from their jail/prison cell.

The principle of letting a guilty person walk before convicting an innocent one has to do with our high burden of proof, and putting the risk of error on the state. It has absolutely zero to do with the Fourth Amendment. The exclusionary rule is about letting guilty people walk, even though we know they’re guilty, because the police crossed the line. I say that’s a terrible principle. Let them sue; that would provide a much greater incentive for police not to cross the line.

The issue is not so much whether these decisions are right or not as it is whether they are pro-defendant or not. I can see that you approve of each and every pro-defendant decision rendered by the Court, and see them as simply correct and unremarkable decisions. (Even Apprendi, the one decision that you admit was “remarkable,” you characterize as less remarkable than the alternative.) You essentially see all of these cases as simply an extension of existing rights. Fine. But they are pro-defendant — and they easily could have come down the other way.

What I characterize as “mild hyperbole” was my statement that there may be one or two decisions out there from the Rehnquist Court that favor criminal defendants. If I were to put a serious look on my face, I would of course acknowledge that, over the 19 years of the Rehnquist Court, it is likely that the total number of decisions issued by the Court favoring a defense point of view may well exceed two in number. The way I chose to say this was: “Sure, there may be one or two such decisions . . .” Now you seize on the admission of slight hyperbole as if it is an admission of lying — one that excuses the deception in the L.A. Times article. Now this op-ed writer can pretend that Scalia, Thomas, and Rehnquist were all against a decision that they all, in fact, joined — and that’s okay because some conservative blogger used not entirely serious language to describe the number of pro-defense decisions the Court has issued during Rehnquist’s tenure. Whatever.

I also take issue with your mocking of textualism. The highly specific, quasi-legislative warnings set forth in the Miranda decision — and the remedy for failing to give them — have no basis in the text of the Constitution. This undeniable fact is what kept the Court from clearly declaring that Miranda rights are a Constitutional right — either in Miranda or Dickerson itself — and was also what led Congress to pass the law at issue in Dickerson. The weaselly way the Court dealt with the issue — essentially saying that the Constitution doesn’t really require the recitation of rights, but we have always pretended it did, so we’re going to go with our pretense — was all about maintaining Court prestige, and nothing to do with the Constitution. It was a load of crap, in short.

And don’t kid yourself: criminals go free all the time as a result. The officer read the rights from a card, but he forgets the card when testifying at a preliminary hearing, and an asleep Deputy D.A. doesn’t remind him to get one — so he muddles up the rights that were read. Or, perhaps some experienced detective recites the rights from memory, and actually does fail to correctly say one of the rights — to a criminal who has had his rights read to him dozens of times and could probably recite them better than the detective. So the criminal’s entirely voluntary confession is suppressed and he goes free. It’s a game, and it’s a travesty, and it has no basis in the Constitution.

I am not minimizing the evidence. I am countering it with my own. I invite you to read the Rehnquist court’s record on the Fourth Amendment, but since you’ve come this far without any concern for the merits of the issue, I doubt you’ll start now.

over and out.

Paragraph 1 - Another example of your (transparent) attempt to minimize counter-evidence.

Paragraph 2 - Try this trick with someone else. The problem is not that I failed to read/understand your post, it’s that I understood exactly what you were trying to do - defend the accuracy of Cohen’s analysis, which you now admit requires “latitude” - and pointed out the shortcomings of that defense.

Paragraph 3 - A straw man that has nothing to do with the topic or my posts.

Paragraph 4 - Before you lecture others on civility, re-read paragraph 3.

Paragraphs 5 and 6 - I agree that your list is meaningless. Maybe you could tell us the way in which each of the cases listed illustrates the “dismay” of Rehnquist, Thomas and Scalia, which was the claim made by Cohen and challenged by Patterico.

Paragraph 7 - Why do you feel a need to resort to name calling?

Paragraph 8 - Keep trying.

Because I’ve been prolific/long-winded in my comments, I won’t ride you too hard for not reading every word…but to reiterate, I am not defending the article, except to say that an op-ed piece should have latitude to characterize within the facts or to engage in “mild hyperbole”, as Patterico puts it.

A quick rant. A complaint I have with the Right is that they cannot take anywhere close to the same level of hyperbole and disparagement that they dish out. You say civility toward other viewpoints is for sissies, yet you cry like stuck pigs if anyone is anyone does not have all the same beliefs and sensibilities concerning war, the administration, religion, or whatever. You’d prefer to think we are all strict New Dealers and babykillers who are rooting for the terrorists so that some smarmy senator or other can step into the White House. And your defense for being uncouth SOBs, most typically, is simply that you’re right and therefore it’s not name-calling. It’s like calling your favorite Justices Constitutionalists or Textualists or Originalists (or them calling themselves that): all of case law is an incremental interpretation of the text. If you are so taken with the minimalistic view of Thomas’ recent opinions, then call it Minimalism or some damn thing. It’s not the eighteenth century anymore, and the constitution is interpreted with every decision, at best at a high level of sophistication, at worst based on an inconsistent and unintelligbile quasi-consensus. Acting like constitutional interpretation is just about “cutting the bullshit” may garner the bobble-fisted agreement of those who think just like you but really is neither here nor there, so step up and admit to the debatability and complexity of these issues. Thicken up your skin, will you? It’s friggin irritating.

So the Court is going to begin its inevitable rightward lurch. Maybe that’s whay I’m ranting, but it’s also to remind you to celebrate, be good winners, and give your “nyah nyah nyah” finger-pointing attitude a rest.

So in short, you want cases? Leon. Sheppard. Evans. Chesternut. Hodari D. Bostick. Harris. Gates. Sokolow. Brown. Hensley. Villamonte-Marquez. Sitz. Wilson. Robinette. Padilla. Knotts. Macon. Greenwood. Oliver. Long. Bostick. Houghton. Carter. Earls. The four I mentioned. and more…

But this list, which I gather you wanted to see, is meaningless on its own. There are “pro-defense” cases too. Look at the body of law if you want to understand how the privacy and Fourth Amendment rights got whittled down to the thinnest and least enforceable of rights, on issues implicating major liberty interests and in which the government routinely and demonstrably pulls all kinds of crap.

I guess I’ll call myself a Freedomist now, and all pro-prosecution types Fascists…

Just trying to make a point.

Your minimizing every Rehnquist court decision that arguably decision that “protects defendants’ rights” as a “return to sanity” or a “response to the government’s attempts to strip those rights down or reclassify them in a way that reduced them” just shows that you are unwilling to look at the record objectively. How can a fair minded person of your apparent persuasion NOT give the supreme judiciary credit for resisting the attempts of the executive branch to “strip down” or “reduce” rights?