Why the Criminal Defense Bar Will Miss Scalia

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By Lance J. Rogers

Feb. 17 — Although Antonin Scalia was famous for his acid rhetoric, unapologetic defense of the death penalty and fierce opposition to progressive causes like gay marriage, he should also be remembered as a stout champion of some core constitutional principles that are near and dear to the heart of the criminal defense bar, according to court watchers who spoke with Bloomberg BNA.

Scalia's strict textual interpretation of the Constitution left him siding with—and often leading—the liberal wing of the court when it came to securing the right to be tried by a jury, to confront and cross-examine prosecution witnesses and to be free of unreasonable searches and seizures.

He also was opposed to sending people to jail for violating vague and badly drafted statutes, which raises the question of whether his voice will be missed when the court later this term reviews the corruption conviction of former Virginia Gov. Robert F. McDonnell (R).

Scalia didn't just vote reflexively for or against law enforcement, Laurie Levenson, a former federal prosecutor who teaches at Loyola Law School in Los Angeles, told Bloomberg BNA.

“He had his principles and he stuck to them,” Levenson said.

“I'm gonna miss him,” criminal practitioner John Wesley Hall, Little Rock, Ark., told Bloomberg BNA.

“To me, he was the conscience of the court when it came to the Fourth and Sixth Amendments.”

Scalia died Feb. 13 while on a hunting trip in Texas.

‘Pro-Fourth Amendment.'

Although Scalia was known as a strict textualist who refused to discover or carve out new constitutional rights that couldn't be found in the literal text of the Constitution, he fiercely defended the specific rights that were enumerated.

And nowhere was this philosophy more evident than in the area of the Fourth Amendment, Hall said.

According to Hall, Scalia revealed his exacting stance on Fourth Amendment issues very early in his tenure in the 1987 case Arizona v. Hicks where, in his opinion for the court, he said police engaged in a warrantless search by lifting up a piece of stereo equipment so they could record the serial numbers and check if it was stolen.

The dissent in Hicks argued that the police were justified in making this “cursory inspection” because they were on the premises legally when they noticed that the deluxe equipment seemed out of place in what was described as a “squalid” apartment. This wasn't a “full-blown search,” the dissent said.

But Scalia wouldn't have it, Hall noted, and wrote, “A search is a search, even if it happens to disclose nothing but the bottom of a turntable.”

Justice Ruth Bader Ginsburg, Scalia's closest friend on the court, told the Wall Street Journal in a 2014 interview that Scalia “is one of the most pro-Fourth Amendment judges on the court.”

Trespass Theory

Both Hall and Levenson said that one of Scalia's biggest contributions to Fourth Amendment jurisprudence was his revival of the 20th century concept of trespass.

For years it was assumed that the Katz v. United States reasonable-expectation-of-privacy test was the only standard for determining whether there was a Fourth Amendment search and that “trespass theory” was no longer relevant, Hall said.

“But trespass was never dead,” Hall quipped, “it was just sleeping.”

Writing for the 5-4 majority in the 2012 case United States v. Jones, Scalia used the trespass analysis to rule that police needed a warrant to place a GPS tracker on a suspect's vehicle that monitored the vehicle's every move .

A year later, in another 5-4 decision, Scalia used the same trespass rationale to rule that the police in Florida v. Jardines conducted a warrantless search when they led a drug-sniffing dog to the front door of a house to investigate an unconfirmed tip that the homeowner was growing marijuana inside .

Hall and Levenson also said that the Jardines analysis reflected Scalia's particular concern for the privacy of the home and the curtilage around the home.

This concern manifested itself in Scalia's 2001 opinion in Kyllo v. United States, where he said police needed a warrant to point a thermal-imaging device at a home because it allowed police to obtain information about the interior of the home that couldn't otherwise have been secured without a physical intrusion .

Confrontation Clause ‘Back on the Map.'

Several observers credited Scalia with single-handedly breathing new life into the confrontation clause in Crawford v. Washington, where the court in 2004 rejected “reliability” as the standard for admitting the testimony of an out-of-court witness and returned to an inquiry that focused on the procedural question of whether the accused was allowed to face his accusers.

“Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty,” Scalia wrote.

Crawford v. Washington was groundbreaking and turned much of the law on the admissibility of hearsay evidence on its head,” Levenson told Bloomberg BNA.

For years, prosecutors had been relying on certified reports or other “firmly rooted” exceptions, Levenson said. “Now they have to make sure the defendant had the right to cross-examine his accuser at some stage of the criminal proceeding.”

Five years after Crawford, Scalia wrote the majority opinion in Melendez-Diaz v. Massachusetts, which extended the Crawford analysis to testimony from lab technicians .

Responding to the state's argument that confrontation rights ought to be relaxed to accommodate the necessities of trial and the adversary process, Scalia wrote, “The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience.”

The lawyer who argued Crawford, Jeffrey L. Fisher, of Stanford Law School's Supreme Court Litigation Clinic, told Bloomberg BNA that the decision “put the confrontation clause back on the map and it makes a difference in courtrooms across the country every single day.”

Strong Voice for Right to Jury Trial

James E. Felman, of Kynes Markman & Felman, Tampa, Fla., agreed that Crawford was a big deal, but he also singled out Scalia's record on the jury guarantee component of the Sixth Amendment.

“Scalia was a strong voice on the right to trial by jury which dates back to his concurring opinion in Apprendi v. New Jersey,” Felman told Bloomberg BNA.

Apprendi stands for the proposition that a jury, not a judge, must decide the facts used to enhance criminal sentences beyond statutory maximums .

Felman, a self-described “sentencing nerd,” said Scalia was a purist who “championed the case of fairness in sentencing.”

Felman noted that Scalia took the lead on this issue again in the 2004 blockbuster decision Blakely v. Washington. The court there ruled 5-4 that, under Apprendi, a state sentencing regime that allowed sentences to be enhanced on the basis of facts other than those found by the jury in convicting the defendant violates the Sixth Amendment right to a jury trial .

Two years earlier, Scalia gave full vent to his views on this subject when he joined the majority opinion in Ring v. Arizona, agreeing that Apprendi requires a jury to find the aggravating factors necessary to impose capital punishment.

Responding to the argument that aggravating factors needn't be decided by a jury, Scalia wrote, “I believe that the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives—whether the statute calls them elements of the offense, sentencing factors, or Mary Jane— must be found by the jury beyond a reasonable doubt.”

Decried Overcriminalization

Some lawyers took note of Scalia's seemingly pro-defense campaign against vague and badly drafted criminal laws.

“He brought new traction to arguments made by defense lawyers about vagueness,” Jeremy D. Frey, of Pepper Hamilton LLP, Philadelphia, told Bloomberg BNA.

For years, Scalia attacked what he saw as the conceptual weaknesses of the residual clause in the Armed Career Criminal Act. In his dissent in the 2011 decision in Sykes v. United States, he said that the time had come for the court to stop shoring up “Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation” that is attractive to lawmakers who seek credit for addressing a national problem but who leave the nitty-gritty to the courts .

Four years later, in Johnson v. United States, he finally persuaded the court to come around to his way of thinking .

Johnson certainly illustrates how Scalia’s interpretive approach could resemble the rule of lenity, by holding the legislature to its duty to speak intelligibly to the judiciary,” Gray R. Proctor, a criminal law practitioner in Orlando, Fla., told Bloomberg BNA.

According to Frey, Scalia strongly believed that Congress has a constitutional obligation to give clear notice of the prohibited conduct.

“He saw no reason for the court to fix laws through judicial decree that failed this constitutional requirement,” Frey said.

This philosophy was perhaps best exemplified, in Frey's view, by Scalia's longstanding crusade against the federal honest-services fraud law, 18 U.S.C. § 1346, which culminated in the 2010 decision of Skilling v. United States.

Although Scalia didn't persuade his colleagues to strike down the entire law, Frey said, “The majority found that the honest services fraud law was without an adequate limiting principle, and ordered it confined to only bribes and kickbacks.”

Frey noted that the court and lower federal courts are still struggling with the honest-services law and later in 2016 will take up the question of what constitutes an “official act” under the statute in McDonnell v. United States.

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com