Sunday, July 16, 2017

Gorsuch, Part 5: Criminal Cases--His Past IS Prologue

In the last post, we began to look at now-Justice Neil Gorsuch's record as a federal appeals judge. [See Part 4.] We looked at his dissenting opinions--those very revealing writings--during his time on the 10th Circuit Court of Appeals, which is where he sat immediately preceding his appointment to the Supreme Court. We focused on civil cases.

Gorsuch with Scalia
CNS photo/via Reuters
On issues as varied as worker rights, consumer protection, the right to choose, and separation of church and state, there was a clear, unmistakable pattern: ideologically ultra-conservative. Some will view that positively; others negatively. Regardless, Gorsuch's record was what it was: ideologically ultra-conservative.

Now let's turn to the criminal appeals. Again, we'll look at those opinions in which he felt strongly enough to disagree publicly with the majority of his colleagues by authoring a dissent.

Ineffective Counsel
Williams v. Jones: The majority adhered to its original decision--i.e., it declined to rehear the case--in which it had ordered the lower court to provide relief to the defendant whose constitutional right to counsel was violated. The attorney--whose deficiency was not in dispute--had threatened to withdraw when the defendant wanted to accept the prosecution's very lenient plea offer; afterwards, the defendant was tried and received a very harsh sentence. Gorsuch dissented; among other things, he argued that the defendant was not prejudiced by his lawyer's incompetence, because the ensuing trial was fair.

Hooks v. Workman: The majority reversed the defendant's death sentence on the ground that his lawyer was "woefully inadequate" at the sentencing hearing. The court explained that, in the lawyer's presentation, "[e]vidence of family and social history was sorely lacking; the mental-health evidence presented was inadequate and quite unsympathetic; and the lawyer not only failed to rebut the prosecution’s case in aggravation but actually bolstered it." Gorsuch dissented; he argued that the defendant was not prejudiced by the lawyer's "alleged deficiencies" because the jury would likely have voted for the death penalty anyway.

Section 1983 Liability/Immunity for Unconstitutional Action
Webb v. Thompson: The majority, siding with the former suspect, ruled that the correctional officers at the local county jail would be liable to him under 1983 for a deprivation of his constitutional rights, if the facts showed that they caused his illegally prolonged detention before he was brought before a judge for a probable cause hearing; at the eventual hearing, the prosecution dropped all the charges. Gorsuch dissented; he argued that, even if the officers caused the suspect's excessively long detention, it was not their duty to get him to a judge.

Cortez v. McCauley: The majority ruled that the suspect's arrest was constitutionally unreasonable and could support a claim against the police under 1983; the arrest was based solely on information that was attributed to a "barely-verbal two-year old child," that had been relayed to the police in a telephone call by a nurse, who in turn had heard it from the mother, who had allegedly heard it from the two-year old. Gorsuch dissented; he argued that the police could not be liable because, in his view, it had not been clear that the officers should not rely on the relayed alleged statement of a two-year old to make an arrest.

U.S. v. Bernard: The majority vacated the defendant's guilty plea; he had entered it only after the trial judge refused to suppress statements he previously made to the police who had handcuffed him, placed him in custody, and then questioned him without advising him of Miranda rights. Gorsuch dissented; he argued that the Miranda violation was a harmless error because the defendant probably would have pleaded guilty anyway.

Search & Seizure
U.S. v. Dutton: The majority ruled that the search in question was unconstitutional and the evidence obtained should be suppressed because the warrant, which did not connect the defendant to the place to be searched, was patently invalid. Gorsuch dissented; he argued that the police presumably acted in good faith and relied on the warrant.

U.S. v. Carloss: [This one requires close attention.] The majority ruled that the defendant's rights were not violated when FBI agents went to the home where he was staying, walked to the front door and knocked, and then spoke to the defendant when he came outside from the back door; the defendant never referred to the signs saying “Private Property No Trespassing” or otherwise objected to the agents' presence. Gorsuch dissented, this time siding with the defendant on the ground that the agents had trespassed on the house despite the signs. Yes, he sided with the defendant.
BUT--and this is what's most significant here--he did so by echoing the very narrow, literal view of search and seizure rights that his hero, and the justice he replaced, the late Antonin Scalia, had taken. That is, that the 4th Amendment does not prohibit unreasonable searches. Rather, it only prohibits unreasonable searches of the specific items mentioned in the amendment--i.e., "persons, houses, papers and effects."
Soooo, the Constitution does protect a house, such as defendant's in this case. But, according to this narrow, literal view, the Constitution does not protect private property other than one's house. Nor does it protect the airspace immediately above one's house. Nor does it protect private conversations. Nor does it protect a person's comings and goings or whereabouts. Etc., etc., etc. Why not? Because none of those things are specifically mentioned in the 4th Amendment.
This is precisely the position Scalia argued in search and seizure cases, and it is precisely the position Gorsuch took in his dissent in this case.
This is what Gorsuch wrote:
The Fourth Amendment, we know, prohibits “unreasonable” searches of particular places and things: “persons, houses, papers, and effects.” U.S. Const. amend. IV. So even if an officer commits a common law trespass when searching your wheat fields, he does not commit a Fourth Amendment violation...[A] 'search' occurs when the government physically enters a constitutionally protected area. [Bold added.]
And just what authority did Gorsuch rely upon for his narrow, literal view of 4th Amendment search and seizure protections? Two opinions by Scalia insisting on that narrow, literal view, as well as some earlier decisions of the Supreme Court that allowed searches--without any warrant or even probable cause--of a person's private property beyond the home or from the air above the home.
[For more on this narrow, literal view of search and seizure rights as applied by Scalia, see Justice Scalia's Record (Part 6: Technological Surveillance); and see conservative Justice Samuel Alito's separate concurring opinion in U.S. v. Jones, 565 US 400 (2012), harshly condemning Scalia's view as being based on decisions that the Supreme Court had actually overruled a long time ago and as contrary to the Court's "legitimate expectations of privacy" jurisprudence.]

So there it is. Then-Judge Gorsuch opposing his colleagues' decisions when they enforced the rights of the accused, whether the right to effective assistance of counsel, the right to sue the government for violation of one's constitutional rights, the protections against wrongful interrogations, and search and seizure rights. And even when ostensibly supporting the rights of the accused, then-Judge Gorsuch espousing Scalia's very narrow, literal view of 4th Amendment protections.

Unless one simply chooses to be dense, or ideologically argumentative or blind, it can hardly be denied that Gorsuch's criminal law jurisprudence, as evidenced by those especially revealing separate dissenting opinions, is ultra-conservative, law and order, and largely unsympathetic to the rights of the accused. One may approve of that approach or not. But regardless, that IS Gorsuch's jurisprudence.

Next, we'll look at now-Justice Gorsuch's record thus far on the Supreme Court.