4th Circuit flags possible misreading of Eighth Amendment precedents

An interesting opinion from the U.S. Court of Appeals for the Fourth Circuit this week all but invites a future challenge to some of that court’s Eighth Amendment case law.

The case involved a teenager sentenced to a fifteen-year mandatory minimum that many people would view as disproportionate to the crime committed. (The trial judge, and probably all the judges on the appeals panel, viewed it this way.) One way of challenging a disproportionate sentence is through the Eighth Amendment, as a violation of the prohibition on “cruel and unusual” punishment.

The court ultimately did not reach this challenge by the defendant — a different challenge was more clear-cut. The defendant was not given his Miranda rights before being interrogated in a situation which, the court found, was “custodial” — in other words, a situation in which a reasonable person would not feel free to leave. This constitutional violation demanded a new trial without the fruits of this interrogation.

Judge Wilkinson, writing for the court, found it unnecessary to reach the merits of the Eighth Amendment argument, but did make this comment:

[T]his was a case in which both police and prosecution applied a heavy foot to the accelerator. We do not doubt for an instant that the defendant’s conduct here was reprehensible and worthy of both investigation and punishment, as the guilty plea attests. But attention to balance and degree often distinguishes the wise exercise of prosecutorial discretion from its opposite. For now we leave to the reflection of the appropriate authorities whether it was necessary to throw the full force of the law against this 19-year-old in a manner that would very likely render his life beyond repair.

Even more interestingly, Judge King wrote separately to call into question some of the Circuit’s Eighth Amendment cases. And he did so in no uncertain terms, calling the rule in such cases “a misperception of the law in this Court.” (Another persuasive opinion by Judge Gregory had made a similar argument when the full court denied en banc review.) The question is whether Eighth Amendment challenges are available for sentences less than life imprisonment.

It started with a case called Polk, in which the court declined to exercise Eighth Amendment review, noting that it was not required to do so in cases involving sentences less than life. But in later cases, panels of the Fourth Circuit began citing Polk for the proposition that such review was unavailable for sentences less than life.  (Examples: Ming Hong, Lockhart.) This, he argues, is a misunderstanding of what Polk said: not being required to do something is not the same as not being allowed to do it. Other circuits do not follow this rule, and Supreme Court precedent calls it into question.

It would probably require full-court review to change course at this point — but Judge King’s opinion in this case all but invites such a review when an appropriate case arises.

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Fed. Circuit: VA can’t use failure to report as evidence

If a veteran’s service record does not mention any reports that the veteran was sexually assaulted while in service, can the Department of Veterans Affairs (VA) use this absence of records as evidence that no sexual assault occurred? In AZ v. Shinseki, a recent decision by the Court of Appeals for the Federal Circuit, the court wrote that the VA may not make this inference; the absence of a contemporaneous report should have no value as evidence.

These consolidated cases arose when the veterans sought compensation for their post-traumatic stress disorder (PTSD), caused by having been sexually assaulted by fellow service members while they were in service. In two separate decisions addressing the veterans’ claims, the VA had weighed the absence of contemporaneous reports as evidence against the veterans’ claims, and the Court of Appeals for Veterans Claims accepted the VA’s factual findings.

The Federal Circuit appeals court found that these findings were improper. Judge Dyk, writing for the panel, examined the common law of hearsay. Although not binding law in administrative proceedings, hearsay rules are a useful guide to what evidence should be considered. The court found that an absence of an entry about the incidents of sexual assault was not admissible under traditional hearsay principles, because such reports are not reliably and regularly made; in fact, various studies (including the Defense Department’s SAPRO reports, which the court frequently referenced) have shown that at least 85% of these incidents go unreported within the chain of command.

The court went even further because the veterans in these cases admitted that they had not reported the incidents to their superiors. So the court was also faced with the question of whether an admitted failure to report has any value as evidence, regardless of hearsay rules. The court again ruled that this should not be considered as evidence against the veterans’ claims. Again turning to the common law, the court found that even the traditional (and somewhat outdated) common law principles regarding failure to report sexual assault were satisfied here; the common law looked to whether the victim told anyone about the incident, and in this case, the veterans had confided in other people, just not their commanding officers.

The court also noted, referencing DoD’s reports, that sexual assault between service members is a major problem for the military (as anyone who reads the news lately is aware.) Several unique factors in the military chill reports of such incidents, and this backdrop is relevant and inescapable.

Judge Moore dissented from the panel’s opinion. While she might have disagreed with the VA’s weighing of the evidence, she argued that the panel had no authority to decide that the evidence of non-reporting was totally irrelevant. Relevance, she wrote, is a pretty low threshold: a piece of evidence is relevant if it tends to make any material fact just slightly more or less probable than it would be otherwise. Even if 90% of sexual assaults go unreported in the military, under reasonable assumptions, the failure to report does have some very small evidentiary value.1 It’s a question of how the evidence should be weighed, not whether it should be admitted, in her view.

So Judge Moore is probably right, as a technical matter, under the general low threshold of relevance she described from Federal Rule of Evidence 401. But, to throw my two cents in, the general rules of evidence also have another principle that the panel did not note. After Rule 401 on relevance,  there is Rule 403: Relevant evidence may be excluded if its value is substantially outweighed by the danger of unfair prejudice or confusion of the issues. On the facts of these cases, I think the VA demonstrated both unfair prejudice and some degree of confusion in attaching great weight to the failure to report; perhaps the court was too polite to say so. Given how rarely these incidents are reported, the absence of a report is of extremely little value, and if the VA can’t recognize that, they shouldn’t be allowed to consider it at all.

And from now on, as a result of this opinion, they won’t be.

  1. “Under reasonable assumptions” are my words, not hers: fans of Bayesian inference will note that, if there are any false reports, the evidentiary value of the records would be even smaller, or perhaps even negative. This is akin to the problem of false positives in medical tests: even a very small rate of false positives can mess up the evidentiary value of a test; it depends on a number of variables unknown here. Without going into equations, I don’t believe there would be a significant number of false reports in this context, but some people might hold this belief. Ironically, I think many of these people are also likely to attach undue weight to a victim’s failure to report, though their beliefs contradict each other as a matter of logic. But I digress! []
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DCCA: D.C. gun law unconstitutional

Can it be a crime to simply ride in a car in which you know there is an illegal gun? In a 2-1 opinion by Judge Glickman today, the D.C. Court of Appeals says no.

The law in question is a 2009 D.C. law, D.C. code § 22-2511, which criminalizes the knowing presence in a motor vehicle containing a firearm. (“PMVCF” for short.) The law was supposed to make it easier to convict the occupants of a car where a gun is found, when the government can’t prove who actually owned it or had control over it.

The court found two constitutional problems with the law: first, it shifted the burden away from the government and onto the defendant regarding whether the defendant’s presence in the car was voluntary or involuntary. But the court wrote this constitutional flaw would not require striking down the statute entirely, but rather modifying the law to put the burden on the government.

More troubling to the court was that this was a “crime of omission.” In other words, if you learn that there’s an illegal gun in the car, failing to get out of the car as soon as you can is a crime — and laws that criminalize the failure to do something are very rare. The court compared it to a 1957 Supreme Court case in which Los Angeles required convicted felons to register with the city when they moved there; the Supreme Court found that law unconstitutional, because it was an unexpected and unusual crime of omission.

Although ignorance of the law is no excuse, you simply wouldn’t expect to be punished just for being around someone who’s breaking the law. The court pointed to one way in which the law is illogical — you can hang around with someone all day and go anywhere with them while they’re carrying an illegal gun, but don’t you dare get into a car with them. This is not what an ordinary person would expect.

Judge Thompson concurred in the judgment only, finding that the jury was improperly instructed and that the defendant should get a new trial. She dissented, however, from the court’s decision to hold the statute unconstitutional. She argued the 1957 Lambert case was an anomaly, and has almost never been used to strike down other statutes.

The defendant’s conviction was reversed, and the statute prohibiting presence in a motor vehicle containing a firearm was struck down. For now, PMVCF is no longer a crime in the District. But given the hard line DC takes on gun charges, it’s probably still not a good idea.

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DCCA: DNA analysts should present results in court

Earlier this summer, I wrote about the North Carolina Supreme Court‘s handling of the doctrinal mess made by the U.S. Supreme Court‘s fractured opinions in Williams v. Illinois.  Well, on September 12, the D.C. Court of Appeals announced its latest solution to this problem, in Jenkins v. United States — and it turns out the approaches of NC and DC are basically polar opposites.

"DNA lab" by flickr user snre
Supreme Court results: inconclusive.

In my earlier post, I reviewed the Supreme Court’s 4-1-4 breakdown in Williams and concluded that the North Carolina court had followed the spirit of four Justices, and as a result, probably stretched the law to allow testimony about drug analysis that five Justices would have forbidden.

On the other hand, the new D.C. opinion starts with a case that is, in many important ways, just like Williams: the evidence included DNA profiles that were produced before police had identified the defendant as a suspect. (The twist is that the police did have a suspect at the time — not the defendant, but another guy whom the DNA exonerated.) It’s almost certain from Williams that five Justices would say that this important out-of-court evidence is fair game, if they were faced with the question. But the defendant argued this evidence should not be admitted, Williams notwithstanding, and the D.C. court had to decide what effect the Supreme Court’s fractured opinion in Williams had on existing law.

The answer in D.C. turns out to be, none at all (unless you have a case almost identical to Williams.) When dealing with non-majority opinions, the practice is to try to identify a rule that gives the result on the narrowest possible grounds identified by the concurrence. In other words, how do the plurality and concurring opinions overlap?

Reading the plurality and concurrence in Williams, the D.C. court (through Judge Oberly) decided they don’t overlap at all. Williams, then, did not change existing law. As a result, the court announced it would mostly stick with the bright-line rule that existed pre-Williams (essentially the approach of the Williams dissent.) If the government wants to introduce scientific evidence, call the analyst who performed the test.

This drew a dissent (on many grounds) from Judge Thompson. In important part, she wrote that the D.C. court’s previous post-Williams decision (Young) did not forbid out-of-court testimony in circumstances like this. (The majority described Young as stating a rule that gave a “sufficient” condition for what counts as “testimonial,” but not a “necessary” one.) And she pointed out that five Justices of the Supreme Court would undoubtedly allow this testimony, albeit for various reasons. But in the end, it was the “various reasons” that troubled the majority. If there’s no single reason, then there’s no rule for the lower courts to apply.

Paradoxically, though DC and NC have reached totally different results, both of their approaches also seem to violate the rule of “counting to five.” (Not a real “rule” — as this case shows, the courts are not actually supposed to speculate on what five Justices would rule, but rather are supposed to follow existing rules as best they can.) And this paradox perfectly illustrates the importance of the Supreme Court providing clear guidance (or at least, majority opinions) on important questions. Without this guidance, results are unpredictable — and the meaning of the United States Constitution depends on what state or territory or circuit you live in.

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Fourth Circuit: NC town can’t deny forum for takings claim

In an opinion published last week by the U.S. Court of Appeals for the Fourth Circuit, Judge Shedd writes that a town being sued for a Fifth Amendment taking can’t avoid the suit by playing jurisdictional games.

In this case, homeowners were suing their town over various regulations and actions dealing with beach erosion; one of their claims was that the town was depriving them of the value of their land without just compensation, a “taking” under the Fifth Amendment. (The town is Nags Head, on the NC outer banks, nestled between the sites of the first heavier-than-air flight and the Lost Colony.)

The homeowners initially sued in state court. The town removed the case to federal court, and then asked to have the takings claim dismissed because it was unripe. Under existing Supreme Court precedent, takings claims must first be raised under state procedures for dealing with those claims before a federal court will deem those claims “ripe” for federal litigation. The federal district court dismissed the claims under this “state-litigation” requirement.

The appeals court, however, saw mischief here. The town itself took the case out of state court and into federal court, only to ask to have it dismissed because it should be in state court instead of federal court. The Supreme Court has ruled that similar manipulative litigation is not allowed when a state invokes Eleventh Amendment immunity. The situation here is analogous, the Fourth Circuit wrote. The town waived its opportunity to have a state forum when it removed the case from that forum.

The Fourth Circuit sends the case back to the district court to deal with the landowners’ Fifth Amendment takings claims.

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