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Lower Courts Navigate the Supreme Court’s Decision in United States v. Jones

Lauren Britsch, J.D. Candidate

As a fellow blogger noted last month, the Supreme Court’s decision in United States v. Jones leaves much to be desired by way of direction to lower courts. So, how have lower courts since reacted?

A more thorough discussion of the Jones decision itself is available here.  To briefly summarize, Jones held that “the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’.” However, there were three opinions with different perspectives on the issue: 1) Justice Scalia’s majority opinion, which focused on the physical intrusion of the defendant’s property, his car, though in combination with the collection of information; 2) Justice Alito’s concurrence, joined by Justices Ginsburg, Breyer, and Kagan, which would have decided the question based on the defendant’s reasonable expectation of privacy; and 3) Justice Sotomayor’s concurrence (she also joined Justice Scalia’s opinion), which expressed some agreement with both of the other opinions.

Trial courts are already grappling with how to decipher and apply the reasoning of Jones. Not surprisingly, some courts have had to deal with different technologies under this framework.

Unqualified for Prosecution: Why Qualified Immunity Should Protect Employees of Child Protective Service Agencies from Criminal Liability

Neal Shechter, J.D. Candidate

Marchella Brett-Pierce’s mother Carlotta has gone to trial for murder. Earlier this month, the New York media watched as Marchella’s eight-year-old brother testified against Carlotta and accused her of malnourishing and abusing her children. Meanwhile, social workers Chereece Bell and Damon Adams have been arguing pre-trial motions while awaiting charges of criminally negligent homicide in the related case. But noticeably absent from the entire discussion of the Brett-Pierce media coverage is the fact that New York fails to extend any form of immunity from civil or criminal prosecution to social workers who fail to investigate—or satisfactorily investigate, as in the Brett-Pierce case—reports of child abuse.

Harmless Error—Where’s the Harm in That?

Reid Allison, J.D. Candidate

            On Wednesday, March 21, the Supreme Court will hear oral argument in Vasquez v. United States.  This case has not received much in the way of media coverage, and is understandably dwarfed by the other high-profile cases of the term like the Arizona immigration case or the challenges to the Affordable Care Act.  Even so, as an ongoing matter of practical importance for appellate litigators, Vasquez is a very important case with broad implications.

            Vasquez involves a question of harmless error analysis—not the flashiest or most controversial area of the law, but a very important one at least for its sheer ubiquity in criminal appeals.[1]  The government’s briefin Vasquez spends the first fourteen pages laying out a detailed recitation of the facts underlying the original investigation and cause of action.  This approach to appellate advocacy is within the bounds of current harmless error doctrine, as it relies on adding up the evidence against the defendant to determine that an error is harmless because a jury would have issued a guilty verdict even without the error.  However, this is precisely the variety of argumentation that Vasquez petitions the Court to make clear is unacceptable.

Treatment for Transgender Inmates:

Adapting the 8^th Amendment to 21^st Century Concerns

Erica Trachtman, J.D. Candidate

The Eighth Amendment proscribes the infliction of cruel or unusual punishment. Although the clause was originally adopted due to concerns over torture, Eighth Amendment jurisprudence has grown to encompass the minimum constitutional standards that prisoners are entitled to during their confinement.[1] One of these standards is the provision of medical care; withholding care for serious medical needs constitutes an “unnecessary and wanton infliction of pain.”[2] But just what qualifies as a serious medical need or necessary medical care is subject to debate and a constantly evolving body of medical knowledge. Currently pending before the Supreme Court and scheduled for conference on March 16, 2012, is a petition involving an issue at the frontier of that debate—whether the Eighth Amendment requires the provision of hormone replacement therapy to transgender prisoners.       

Prostitution Free Zones or Playgrounds for Profiling: The Problems With Section 104 of DC’s Omnibus Public Safety Emergency Amendment Act of 2006

Reid Allison, J.D. Candidate[1]

Under current District of Columbia law, police officers have the authority to establish areas of the city as “prostitution-free zones.”  The Chief of Police may declare such zones on “any . . . verifiable information . . . from which the Chief of Police ascertains [that] the public health or safety is endangered by prostitution or prostitution-related offenses” in the area.  Each zone designation is currently limited to a duration of no more than twenty days at a time.  Once such a designation is made, officers may approach any group of two or more people—whom the officers have articulable suspicion to believe are engaging in prostitution or prostitution-related offenses—and demand that they disperse.  If the group does not disperse within a reasonable time, or if it disperses and congregates again in another area of the prostitution-free zone, the officers can arrest members of the group.  Once arrested, a person can be convicted of violating the statute and fined up to 300 dollars and/or imprisoned up to 180 days.       

A Horrific Violation of Trust: Prosecuting Doctors for Patients’ Prescription Overdoses

Erica Trachtman, J.D. Candidate

On Saturday, February 18, 2012, a crowd gathered at the New Hope Baptist Church in Newark, New Jersey, to mourn the untimely loss of music legend Whitney Houston. Although the results of a toxicology test are still weeks away, preliminary reports cite a deadly mixture of alcohol and prescription drugs as the cause of Houston’s death. Multiple prescription drugs were found in the Beverly Hills hotel room where Houston died, including Xanax. It is no secret that the singer had struggled with substance abuse problems for years, but to what extent should her doctor be held accountable for her death? The physicians of the rich and famous regularly face the temptation to ignore ethical obligations and acquiesce to the unreasonable demands of their patients. Although most medical negligence cases are handled in civil court, the recent conviction of Michael Jackson’s doctor for involuntary manslaughter reflects the growing belief that a stronger deterrent is needed, and in some cases, doctors should be held criminally liable when their patients abuse and overdose on prescription drugs.

Tricking Terrorists and Toeing the Entrapment Line: Law Enforcement’s Fight Against Terrorism

Lauren Britsch, J.D. Candidate

Foiling terrorism plots obviously is extremely important to protecting the security of the United States. The work of informants has prevented many attacks and led to prosecutions. The most recent attempted terrorist attack highlights an extremely important aspect of law enforcement’s efforts to intercept attacks before they cause damage—the undercover operation and its close relationship with entrapment.

The FBI arrested Amine El Khalifi on February 17, 2012, for allegedly plotting a suicide bombing at the Capitol. Amine El Khalifi is a 29-year old Moroccan man who was living in Alexandria. He was charged with attempting to use a weapon of mass destruction against federal property in violation of 18 U.S.C. § 2332(a)(3), a crime that could earn him life in prison. The FBI prevented an alleged terrorist attack, but how did they do it?

Confronting the Dead:[1]

The Testimonial Status of Autopsies After Melendez-Diaz and Bullcoming

Reid Allison, J.D. Candidate

During the last decade, the Supreme Court actively has been shaping a particular aspect of constitutional criminal law: the Confrontation Clause. Since 2004, when the Court overruled the Ohio v. Roberts analysis inCrawford v. Washington, the Court has decided four distinct cases within the same line. Crawford introduced the determinative question of whether the evidence that the government seeks to introduce is testimonial. If a court decides that evidence is testimonial, the defendant must be given an opportunity to cross-examine the person who created the evidence (or made the statement), or the evidence may not be admitted. This testimonial status inquiry replaced the Roberts analysis, which determined Confrontation Clause admissibility on the grounds of “indicia of reliability.”

Sex Trafficking and the Internet: Can Advertising Websites Be Liable?

Lauren Britsch, J.D. Candidate

The United States is a “source, transit, and destination country for men, women, and children subjected to forced labor, debt bondage, document servitude, and sex trafficking.”[1] A dearth of statistics makes it difficult to know the scope and exact nature of the problem of human trafficking in the United States. Estimates and anecdotal evidence demonstrate, however, that the problem is widespread and affects not only foreigners but also U.S. citizens, particularly minors. The National Center for Missing and Exploited Children estimates that at least 100,000 American children are trafficked into the commercial sex industry within the United States annually. 

‘RE-CALCULATING!’: How the Supreme Court’s Convoluted Opinion in United States v. Jones Gives Little Guidance on GPS Surveillance & Electronic Monitoring

Neal Shechter, J.D. Candidate

On January 23^rd, 2012, the Supreme Court issued its long-awaited opinion in United States v. Jones unanimously holding that prolonged, warrantless surveillance of individuals using physically-invasive GPS devices attached to their vehicles is an unreasonable search in violation of the Fourth Amendment.