It’s been a bad month for my most recent crop of Supreme Court cases, both in terms of cases where I represent the party and in cases where I am amicus counsel. But I try to learn from them all. And here’s my takeaway from the month. To have and cite a case is not the end of the story, particularly if the precedent was set in the Court of Appeals and hasn’t been heard yet by the Supreme Court. This was the lesson I take away from State v. Thackston. The Supreme Court there overturned a few decade’s worth of precedent to hold that the exclusionary rule does not apply in the probation revocation context. Blue Line Lawyer aptly points out that officers who search in violation of the 4th Amendment can still be held liable  in a civil rights action. Then again, we’re in the 11th Circuit. My initial reaction was, “this is terrible.” Then came Black Monday, where two cases of mine (one as amicus counsel and another as party counsel) went south. I’ve now had a few days to reflect. And during that time I was writing a brief in a murder case.

In that murder case,an issue arose where the precedent looked pretty bad on an issue. So, taking some advice from an appellate judge who spoke to my class earlier this year, I dug a little deeper to see what lies behind the holding in the recent cases. I took the Court of Appeals holding that I did not like, and I began tracing the precedent backward, all the way back to when the Supreme Court first commented on it. How old was the case? It involved a search incident to arrest in a buggy (the horse-drawn variety). I learned that the Court of Appeals, in the 1970s and 1980s took the line of cases from the Supreme Court and twice took the precedent way out of context. And the Supreme Court never adopted the new reasoning. If the Supreme Court could reverse decades of precedent from Thackston because it wasn’t their precedent, then surely they wouldn’t appreciate the Court of Appeals taking their case law out of context and expanding it.

But my point is that it is important not to view precedent as the end of the story, particularly if the Supreme Court has never visited it before or if a line of precedent has developed in both courts. It’s important to track the history of the cases with Article I, Section 1, Paragraph 3 in mind (“The decisions of the Court of Appeals insofar as not in conflict with those of the Supreme Court shall bind all courts except the Supreme Court as precedent.”). In the murder case, the Thackston case reminded me that the bad case I found wasn’t necessarily the end of the story. And an issue I might have been tempted to abandon became a significant part of the brief. With a Supreme Court more willing than ever to consider old arguments anew, it is important to look a little deeper even if the first wave of cases on your Lexis or Westlaw search are less than inspiring.

Yellow Card.jpgIf any case qualifies as an old chestnut, it would be Mapp v. Ohio, the landmark case that provided that evidence gathered in violation of a suspect’s Fourth Amendment rights should be excluded from use at trial. Restricting the use of illegally-gathered evidence is the punishment for the illegal conduct. If there’s a case that high schoolers might read about in a civics or government class, this is it. Mapp is hardly cutting edge law in Georgia. Or is it?

There are two cases in the Georgia Supreme Court right now that test out the boundaries of the exclusionary rule. One case might expand its reach, and another might limit it. Both of these cases are fascinating and will have far-reaching implications for Georgia lawyers in the future.

  • State v. Hulon Thackston – The Supreme Court granted certiorari to ask the following question: Does the exclusionary rule apply in probation revocation hearings as a matter of Federal or State Constitutional law? Assuming that this question is answered in the affirmative, there are inquiries in the cert. order. The other interesting questions is whether the doctrine of collateral estoppel applies when a trial court grants a motion to suppress in a new substantive case and later seeks to introduce the evidence in a probation hearing were the revocation petition arose out of the same facts and circumstances. In the Court of Appeals, the Court assumed that the exclusionary rule does apply and found that the doctrine of collateral estoppel does apply in such a factual scenario. The Georgia Association of Criminal Defense Lawyers is filing an amicus brief in this case.
  • State v. Aron Mussman – The Supreme Court granted certiorari in this case (PDF) to determine, in part, what the proper remedy is where the State fails to preserve physical evidence containing biological material which is relevant to determining the identity of the actual perpetrator. The case involves a charge of vehicular homicide, where the State released a totalled car to the defendant, who was in a car that was wrecked and where the vehicle’s other occupant was killed. Police concluded that the defendant was the driver but did not charge him until after they released the car and it was unavailable for testing by defense experts. A divided panel in the Georgia Court of Appeals determined that the State had failed to preserve the vehicle pursuant to a statute that requires the preservation of biological evidence. However, one of the three judges reasoned that the exclusionary rule should apply where this statute is violated. I was the amicus author for GACDL in the Court of Appeals and will be preparing one at the Georgia Supreme Court as well. So, I have a few thoughts on this subject.

One way or another, Georgia could be in for a big change.

Before I weigh in on this topic as a lawyer, I’d like to analogize this issue as a parent. All the books I read in my first year as a parent to the contrary, parenting is more an art than it is a science. And part of the art is determining when to punish for bad behavior and what the best punishment is. Punish too harsly or inappropriately, and you cause harm. Punish lightly, and your child might opt for the behavior with the punishment as just a cost of doing business.

The State has reached a pretty global solution for bad conduct with respect to the criminally accused. But how do we punish the wrongdoers when they are State actors engaged in investigating our clients?

If the police can enter a residence, search it, find incriminating evidence, and later use it in court, you can’t put them in time out. You can’t spank them. A fine for such conduct might simply become another “cost” of enforcing the law. The exclusionary rule is the best punishment for such conduct. 

What happens if the police are required to preserve biological evidence for later testing where there is fear that some court down the road might order that the evidence be retested and throw open the entire case? Flush the evidence? If you can toss the evidence and there is no consequence, then the statute is merely advisory. 

The hot issue when Mapp was decided was whether a Federal prosecutor, unable to use illegally seized evidence could simply cross the street and hand the file to a State prosecutor, who had a blank check to use it. For the majority in Mapp, such a scenario was unthinkable. How different, then, to imagine a prosecutor not being able to convict on an indictment against a suspect who is on probation but who can draft up a quick petition and use the exact same evidence in a ten-minute revocation hearing – even before the same court that granted the suppression motion in the new criminal case.

In Florida, the land that brought you depositions for criminal cases, the Supreme Court has held that the exclusionary rule applies to statutes that create rights for the accused where the legislature has chosen not to set forth another remedy. The 11th Circuit has held that, where Congress enumerates specific sanctions for violating a statutory right of the accused, those sanctions are exclusive of an exclusionary rule. The logical endpoint of such analysis is that, in the absence of such enumerated sanctions, it is proper for the exclusionary rule to apply. 

Stay tuned. Things are about to get interesting.