06/11/2013 09:57 am ET Updated Aug 11, 2013

That's Not What I Meant!


Over at the New York Times, Adam Liptak interviews the Innocence Project's Peter Neufeld, who is none too pleased at the way Supreme Court Justice Anthony Kennedy cited his book in the majority opinion for the recent DNA collection case, Maryland v. King. In a 5-4 decision, the Court upheld a Maryland law requiring police to take a DNA sample of everyone arrested for a serious crime, regardless of whether they're eventually charged or convicted.*

Kennedy writes that the practice of collecting DNA from everyone arrested for a serious crime could match DNA collected from crimes for which the wrong person has been convicted. "In the interests of justice," Kennedy writes, "the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense." He then quotes from a book written by Neufeld and Jim Dwyer to support his contention.

From Liptak:

I asked Peter J. Neufeld, one of its authors, how he felt about the honor.

"Not great," he said.

Part of the problem was what he called an irony.

In 2009, Justice Kennedy joined the majority opinion in a 5-to-4 decision that said prisoners had no constitutional right to DNA testing that might prove their innocence. Mr. Neufeld, who founded the Innocence Project with Barry Scheck, represented the prisoner on the losing end of that case, District Attorney's Office v. Osborne.

But last week, Mr. Neufeld said, Justice Kennedy concluded that "it's O.K. for the state to take DNA, without a warrant, from mere arrestees, who may ultimately have their charges dismissed."

So Kennedy is happy to invoke the cause of the wrongfully convicted when empowering the police to collect DNA from everyone they arrest. But at the same time, he has ruled that the wrongly convicted have no right to DNA testing, even it could conclusively establish their innocence. Sorta' sounds like a justice who is expropriating sympathy for the wrongly convicted to give more power to police.

Kennedy also misquoted Neufeld. In a quote from the book, Kennedy writes that Neufeld and co-author Jim Dwyer encourage "prompt testing" of DNA to prevent wrongful convictions. But Kennedy implies that the authors were advocating for prompt testing of all arrestees. They weren't. They were advocating for prompt testing of evidence collected from the crime scene. In their book, Neufeld and Dwyer take take six sentences to explain this. In his quote, Kennedy hides those six sentences behind an ellipsis.

Liptak points out that Kennedy's quote from the book also includes a second interesting ellipsis. After misstating what the authors meant by "prompt DNA testing," Kennedy then notes that they state such testing could "prevent the grotesque detention of ... innocent people." The original quote included the words thousands of in place of the ellipsis. Liptak writes, "Justice Kennedy apparently did not want to endorse the possibility that the criminal justice system had such widespread shortcomings." That seems like the only plausible explanation. I can't imagine that Kennedy was trying to squeeze under some sort of word count limit on Supreme Court opinions.

This isn't the first time an expert has been upset about the way their work was interpreted by the Court. I describe another example in my forthcoming book. In the 2006 case Hudson v. Michigan, the Court decided in a 6-3 vote that even when police conduct a clearly illegal no-knock raid, any illegal evidence they might seize afterward isn't subject to the Exclusionary Rule. So it can still be used against the defendant at trial.

Writing for the majority, Justice Antonin Scalia took aim at the rule, which has long been a target of scorn among law-and-order conservatives. Scalia and the majority concluded that the rule was an inappropriate remedy for violations of the knock-and-announce rule. Instead, Scalia argued that there are other, more appropriate ways to hold police officers accountable when they violate the rule. He suggested, for example, that internal affairs departments investigations and internal discipline could be sufficient to deter cops from barging into homes without knocking and announcing themselves. If you're familiar with the phrase blue code of silence, you'll know why that's rather unlikely.

To support his thesis that are better methods to deter knock-and-announce violations, Scalia cited the work of criminologist Samuel Walker, who has done extensive research on police professionalism. In the book Scalia cited, Walker concluded that there has been enormous progress "in the education, training and supervision of police officers." Scalia argued that this progress was making the Exclusionary Rule obsolete. But Walker's thesis was that this progress had come about because of Supreme Court decisions applying the Exclusionary Rule, particularly during the Warren court. Police departments implemented better search procedures because with out them, their arrests would be continually thrown out by the courts. To cite his work to argue against the rule was to completely miss his point.

Like Neufeld, Walker wasn't happy to see his work misappropriated. Shortly after the Hudson decision came down, Walker wrote an op-ed in the L.A. Times headlined, "Thanks for nothing, Nino." (Nino is Scalia's nickname.) Walker wrote:

A FRIEND OF mine e-mailed me last week with some exciting news -- the Supreme Court had cited one of my criminal justice policy books in an important, late-term decision. My law professor friends tell me that being mentioned by the court is a huge deal. And my 93-year-old mother in Cleveland will certainly be impressed that her son has finally done something worthy of note.

Alas, as I surfed the Net for news about Hudson vs. Michigan, my excitement quickly turned to dismay, then horror. First, I learned that Justice Antonin Scalia cited me to support a terrible decision, holding that the exclusionary rule -- which for decades prevented evidence obtained illegally by police from being used at trial -- no longer applies when cops enter your home without knocking . . .

Scalia's opinion suggests that the results I highlighted have sufficiently removed the need for an exclusionary rule to act as a judicial-branch watchdog over the police. I have never said or even suggested such a thing. To the contrary, I have argued that the results reinforce the Supreme Court's continuing importance in defining constitutional protections for individual rights and requiring the appropriate remedies for violations, including the exclusion of evidence.

Imagine devoting your life to academic research, then learning that the Supreme Court has just cited your research to support an opinion that contradicts everything your research has found. And that opinion is now the law. It must be infuriating.

(*The Maryland law that the decision upheld is actually pretty narrow, as these laws go. If you're never charged or convicted, for example, you can ask that your DNA profile be removed from the state database. The problem is that the majority opinion was written broadly enough to include states far more onerous DNA collection laws.)



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