Scalia’s Criminal Law Legacy: Sixth Amendment Edition (Part 2)

For a second (and abbreviated) post on Scalia and the Sixth Amendment (first post here), I turn to the Sixth Amendment’s last-enumerated right: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” At minimum, the clause means that the government cannot bar an accused’s privately-retained attorney from the courthouse. (At the time of the founding, England prohibited most felony defendants from employing counsel.) Over time, the Supreme Court has interpreted the clause to guarantee five distinct rights: (1) the right to court-appointed (i.e., publicly-funded) counsel, if the accused cannot afford to hire counsel; (2) the right to counsel of the accused’s choice; (3) the right to effective assistance of counsel; (4) the right to conflict-free counsel; and (5) the right to forgo counsel and represent oneself.

I had initially planned to cover at least three of the above categories, but I’ve committed to bring this series to a close within a month of its start. Due to unexpected obligations at work my pace has lagged. In light of my approaching deadline, I’ll limit myself here to the right of self-representation . . .

Since Faretta v. California, 422 U.S. 806 (1975), the Supreme Court has recognized that the Sixth Amendment guarantees a defendant the right to waive his right to counsel to represent himself at trial. The right of self-representation is not made explicit in the Sixth Amendment’s text. As Justice Breyer explained in Indiana v. Edwards, 554 U.S. 164 (2008), the Court

implied that right from: (1) a “nearly universal conviction,” made manifest in state law, that “forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so”; (2) Sixth Amendment language granting rights to the “accused”; (3) Sixth Amendment structure indicating that the rights it sets forth, related to the “fair administration of American justice,” are “persona[l]” to the accused; (4) the absence of historical examples of forced representation; and (5) “respect for the individual.”

Faretta is not universally beloved. In Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S. 152 (2000), which declined to recognize a right of self-representation on appeal, the Court cast a cold eye on Faretta. Justice Breyer’s concurrence noted that “judges closer to the firing line have sometimes expressed dismay about [Faretta’s] practical consequences.” Doubtless, in most cases of pro se representation the adage “one who is his own lawyer has a fool for a client” is proved true. I’ve tried two pro se cases. In one, the defendant took the stand and admitted to the crime. In the second, in which the defendant was accused of his beating his girlfriend, he stood up for closing argument, stated “Let me just say it takes two to tango,” and then sat down. Both defendants were quickly convicted.

Scalia defended the right of self-representation against doubts about its wisdom and constitutional pedigree. In Martinez, he concurred only in the judgment, declaring, “I do not share the apparent skepticism of today’s opinion concerning the judgment of the Court (often curiously described as merely the judgment of ‘the majority’) in Faretta . . . .” In Edwards, Scalia, joined only by Justice Thomas, disagreed with the Court’s allowing a state to deny the defendant the right to represent herself when she is not mentally competent to conduct a trial without counsel.

In one sense, Scalia’s opinions on self-representation aren’t standard Scalia fare. He believed Faretta was correctly decided, but wasn’t certain the right fell under the Sixth Amendment. If he’d authored Faretta he “might have rested the decision upon the Due Process Clause rather than the Sixth Amendment.” Here, Scalia seems to suggest that self-representation is a “substantive due process” right. During his tenure on the Court, Scalia was a consistent and vocal critic of the substantive due process doctrine, which he argued was an “infinitely plastic concept” that allowed judges to impose their personal preferences without constitutional authority. Scalia was almost always scrupulous in identifying the source of a right (or the lack thereof)—but not here. To justify the right of self-representation, Scalia also invoked “the supreme human dignity of being master of one’s fate rather than a ward of the State—the dignity of individual choice.” This passage called to my mind Justice Kenney’s (in)famous words in the abortion ruling Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Scalia had ridiculed Kennedy’s proclamation as the “famed sweet-mystery-of-life passage” and “the passage that ate the rule of law.”

In another sense, Scalia’s affinity for the self-representation right is only natural. No fan of paternalism, he could appreciate that Faretta allowed for self-determination, notwithstanding that in most cases self-representation is the fool’s prerogative. It’s not surprising that the Justice who once referred to judges as “employee[s] of the State” would not be keen to have another “employee of the State” (a majority of defendants are represented by public defenders or private attorneys who accept appointments) commandeer the defense of an unwilling defendant. Scalia also spent a career opposing what he saw as the proclivity of judges to contort the Constitution in the service of some supposed higher good. In Edwards he wrote, “In my view the Constitution does not permit a State to substitute its own perception of fairness for the defendant’s right to make his own case before the jury.” And then, the Framers wouldn’t have approved either: “I have no doubt that the Framers of our Constitution, who were suspicious enough of governmental power-including judicial power-that they insisted upon a citizen’s right to be judged by an independent jury of private citizens, would not have found acceptable the compulsory assignment of counsel by the government to plead a criminal defendant’s case.”

Scalia’s Criminal Law Legacy: 6th Amendment Edition (Part I)

The Sixth Amendment to our Constitution guarantees persons charged with crimes certain trial-related rights: to be tried by an impartial jury, to a speedy and public trial, to be informed of the nature of the charges, to confront the witnesses against them, to subpoena witnesses for their defense, and to the assistance of counsel.

Two of those rights—trial by jury and confrontation of adverse witnesses—underwent a transformative decade in the 2000s. Justice Scalia was instrumental to both transformations, which favored defendants.

Right to Trial by Jury

Criminal offenses consist of “elements” that the government must prove beyond a reasonable doubt to get a conviction. In recent decades, lawmakers have created schemes whereby facts and circumstances that aren’t “elements” of the charged offense, but relate to the offender and his crime, may increase the punishment for the offense. In the landmark case Apprendi v. New Jersey, 530 U.S. 466 (2000), the defendant pleaded guilty to a crime (possession of a weapon for an unlawful purpose) that carried a maximum penalty of 10 years. The prosecutor asked the judge to increase the sentence based on the fact that Apprendi’s crime was racially motivated. Because the judge agreed with the prosecutor, the law allowed the judge to impose up to 20 years, double the 10-year maximum for the crime. (The judge gave 12 years.) Under New Jersey law, the government had no obligation to present the hate crime enhancement to a jury and have its members find beyond a reasonable doubt that Apprendi’s motives were racial. Instead, the judge was permitted to make the finding by a preponderance of the evidence (a lighter, and from the government’s perspective more favorable, burden of proof).

In Apprendi’s case, the Supreme Court held that “any fact [other than a prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi’s sentence was invalid because a judge, not a jury, had determined the existence of an aggravating fact necessary to increase the sentence.

Apprendi upended the criminal sentencing landscape. Although Justice Stevens authored Apprendi on behalf of five justices, Justice Scalia laid the groundwork for the sea change in sentencing laws. In a dissent in Almendarez-Torres v. United States, 523 U.S. 224 (1998), Scalia set forth the rule that would carry the day two terms later in Apprendi: “[I]t is genuinely doubtful whether the Constitution permits a judge (rather than a jury) to determine by a mere preponderance of the evidence (rather than beyond a reasonable doubt) a fact that increases the maximum penalty to which a criminal defendant is subject.” Dissenting in Monge v. California, 524 U.S. 721 (1998), later in the same term as Almendarez-Torres, Scalia argued that the constitutional right to trial by jury meant little if it permitted judges to increase criminal sentences based on a range of sentencing enhancements a judge could unilaterally apply:

Suppose that a State repealed all of the violent crimes in its criminal code and replaced them with only one offense, “knowingly causing injury to another,” bearing a penalty of 30 days in prison, but subject to a series of “sentencing enhancements” authorizing additional punishment up to life imprisonment or death on the basis of various levels of mens rea, severity of injury, and other surrounding circumstances. Could the State then grant the defendant a jury trial, with requirement of proof beyond a reasonable doubt, solely on the question whether he “knowingly cause[d] injury to another,” but leave it for the judge to determine by a preponderance of the evidence whether the defendant acted intentionally or accidentally, whether he used a deadly weapon, and whether the victim ultimately died from the injury the defendant inflicted? If the protections extended to criminal defendants by the Bill of Rights can be so easily circumvented, most of them would be, to borrow a phrase from Justice Field, “vain and idle enactment[s], which accomplished nothing, and most unnecessarily excited Congress and the people on [their] passage.”

The views expressed in Scalia’s dissents in Almendarez-Torres and Monge would in short course become law.

Though no fan of the Court’s Eighth Amendment jurisprudence policing the death penalty (where he often found himself in dissent), Scalia joined the majority in Ring v. Arizona, 536 U.S. 584 (2002), invalidating the piece of Arizona’s capital sentencing law allowing a judge to determine the presence or absence of aggravating factors required for imposition of the death penalty. Scalia lamented that the Court’s own misguided interpretation of the Eighth Amendment had forced states to “specify particular ‘aggravating factors’ that must be found before the death penalty can be imposed.” Of overriding importance, however, was his belief “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.” He added this powerful paean to the jury’s role in capital trials:

[M]y observing over the past 12 years the accelerating propensity of both state and federal legislatures to adopt “sentencing factors” determined by judges that increase punishment beyond what is authorized by the jury’s verdict, and my witnessing the belief of a near majority of my colleagues that this novel practice is perfectly OK, cause me to believe that our people’s traditional belief in the right of trial by jury is in perilous decline. That decline is bound to be confirmed, and indeed accelerated, by the repeated spectacle of a man’s going to his death because a judge found that an aggravating factor existed. We cannot preserve our veneration for the protection of the jury in criminal cases if we render ourselves callous to the need for that protection by regularly imposing the death penalty without it.

In Blakely v. Washington, 542 U.S. 296 (2004), Scalia’s majority opinion furthered the aims of Apprendi by holding that a trial judge violated Blakely’s jury right when the judge, in accordance with statute, gave an “exceptional sentence” (three years in excess of the maximum) to Blakely because he’d acted with “deliberate cruelty.” Like much of his best work, Scalia’s opinion in Blakely is at heart about power. He characterizes the jury right as “a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.” To conclude, Scalia drew on his lodestar, the original meaning of Constitution, noting, “The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to ‘the unanimous suffrage of twelve of his equals and neighbours,’ rather than a lone employee of the State.”

Right to Confrontation of Witnesses

Around the same time as the Apprendi revolution, Scalia helped to reshape the meaning of the Confrontation Clause, which gives a criminal defendant the right “to be confronted with the witnesses against him.” According to the Court’s ruling in Ohio v. Roberts, 448 U.S. 56 (1980), the Confrontation Clause did not prohibit the government from introducing an unavailable witness’s statement against a criminal defendant if the statement bore adequate “indicia of reliability.” Roberts meant that the government could (unless hearsay rules said otherwise) admit a witness’s out-of-court statements without affording the defendant an opportunity to cross-examine that witness in court. Scalia’s opinion in Crawford v. Washington, 541 U.S. 36 (2004), changed that by holding the government cannot introduce a witness’s out-of-court, testimonial statement unless the witness is unavailable and the defendant had a prior opportunity for cross-examination.

Because testimony from civilian witnesses who are vulnerable to intimidation or just don’t want to show up for court (which is common with domestic violence) is an integral piece of many prosecutions, Crawford raised the bar for prosecutors. Scalia raised the bar even higher in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), where the prosecution submitted a certified drug test report without also presenting live testimony of the forensic chemist who tested the drugs. In Scalia’s book, this scenario allowed for a “straightforward application” of Crawford; the government could not introduce the results of the drug test without offering up the analyst who tested the drugs for cross-examination. A certified report did not do.

Melendez-Diaz presents a particular challenge for forensic laboratories and prosecutors. Because the kinds of cases that often require forensic analysis, e.g., DUIs and drug cases, are high-volume, the demand for forensic witnesses in such routine cases cannot easily be met. Justice Kennedy captured such challenges well in his dissent in a related case, Bullcoming v. New Mexico, 564 U.S. 647 (2011):

New Mexico’s experience exemplifies the problems ahead. From 2008 to 2010, subpoenas requiring New Mexico analysts to testify in impaired-driving cases rose 71%, to 1,600—or 8 or 9 every workday. In a State that is the Nation’s fifth largest by area and that employs just 10 total analysts, each analyst in blood alcohol cases recently received 200 subpoenas per year. The analysts now must travel great distances on most working days. The result has been, in the laboratory’s words, “chaotic.” And if the defense raises an objection and the analyst is tied up in another court proceeding; or on leave; or absent; or delayed in transit; or no longer employed; or ill; or no longer living, the defense gets a windfall. . . . The concomitant increases in subpoenas will further impede the state laboratory’s ability to keep pace with its obligations. Scarce state resources could be committed to other urgent needs in the criminal justice system.

I doubt Scalia enjoyed the prospect that the rule he championed would give the defense a windfall in many cases (as the author of the law review article “The Rule of Law as a Law of Rules,” he probably had little sympathy for lawbreakers), but he was firm in his belief that inconvenience to the prosecution and its witnesses did not overcome the confrontation right. “The Confrontation Clause,” he wrote in Melendez-Diaz, “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.”

Scalia’s preference for in-the-flesh confrontation was on display long before Crawford and Melendez-Diaz. In 1990 the Supreme Court was asked to decide whether the Confrontation Clause categorically prohibited a child victim in a child abuse case from testifying outside the physical presence of the defendant by one-way closed circuit television. (Maryland v. Craig, 497 U.S. 836 (1990)). The Court found that the “State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court. That a significant majority of States have enacted statutes to protect child witnesses from the trauma of giving testimony in child abuse cases attests to the widespread belief in the importance of such a public policy.” In dissent, Scalia grasped the charitable impulse behind the policy, but gave no quarter in rejecting it:

Seldom has this Court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion. The Sixth Amendment provides, with unmistakable clarity, that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” The purpose of enshrining this protection in the Constitution was to assure that none of the many policy interests from time to time pursued by statutory law could overcome a defendant’s right to face his or her accusers in court.

Scalia’s deconstruction of the majority’s reasoning is an analytical gem worth quoting at length:

According to the Court, “we cannot say that [face-to-face] confrontation [with witnesses appearing at trial] is an indispensable element of the Sixth Amendment’s guarantee of the right to confront one’s accusers.” That is rather like saying “we cannot say that being tried before a jury is an indispensable element of the Sixth Amendment’s guarantee of the right to jury trial.” The Court makes the impossible plausible by recharacterizing the Confrontation Clause, so that confrontation (redesignated “face-to-face confrontation”) becomes only one of many “elements of confrontation.” The reasoning is as follows: The Confrontation Clause guarantees not only what it explicitly provides for—“face-to-face” confrontation—but also implied and collateral rights such as cross-examination, oath, and observation of demeanor (TRUE); the purpose of this entire cluster of rights is to ensure the reliability of evidence (TRUE); the Maryland procedure preserves the implied and collateral rights (TRUE), which adequately ensure the reliability of evidence (perhaps TRUE); therefore the Confrontation Clause is not violated by denying what it explicitly provides for—“face-to-face” confrontation (unquestionably FALSE). This reasoning abstracts from the right to its purposes, and then eliminates the right. It is wrong because the Confrontation Clause does not guarantee reliable evidence; it guarantees specific trial procedures that were thought to assure reliable evidence, undeniably among which was “face-to-face” confrontation. Whatever else it may mean in addition, the defendant’s constitutional right “to be confronted with the witnesses against him” means, always and everywhere, at least what it explicitly says: the “right to meet face to face all those who appear and give evidence at trial.”

One of the common criticisms of Justice Scalia’s jurisprudence is that his originalist legal philosophy served as a veneer allowing him to pursue his personal preferences under the guise of interpreting the Constitution. Scalia’s rulings on the jury right and confrontation right, which assisted criminal defendants, undermine that criticism, since there is nothing in Scalia’s writings that indicate a soft spot for criminals. Rather, his decisions in the Apprendi– and Crawford-line of cases, as well as in Craig, show how he carried out his formalist approach to constitutional interpretation without regard for which side he was helping.