"Why don’t we just abolish the exclusionary rule? That would be really simple. Whatever evidence tends to prove the truth comes in.”

Uh-oh. That was Justice Scalia this morning in Davis v. United States:

JUSTICE SCALIA: Actually, why don't we just abolish the exclusionary rule? That would be really simple. Whatever evidence tends to prove the truth comes in. That would be a very simple system if we're looking for just simplicity, wouldn't it?

MR. DREEBEN: It would be an extremely simple system.

JUSTICE SCALIA: You're not proposing that, though?

MR. DREEBEN: Not in this case, because this case represents only an application of existing doctrine in the Court with respect to the purposes of the exclusionary rule.

As much as Scalia is the best friend of criminal defendants in 6th Amendment and sentencing cases, he is no friend of the 4th Amendment.

Volokh conspirator Orin Kerr argued for Mr. Davis in a case out of the 11th Circuit, and definitely held his own in a very difficult case. According to ScotusBlog:

Kerr, asking the Court to avoid simple labels, said the main problem with expanding the “good faith” exception so as to allow police to rely on Circuit Court precedent was that it would compromise the effect of the later Supreme Court ruling rejecting that precedent. Lawyers, the professor contended, would be discouraged from taking test cases to the Supreme Court to try to get new rules of Fourth Amendment law if it turned out that their client could not benefit from it: as soon as they asked for a new rule, the prosecution would counter that the “good faith” exception would take hold, and the client would lose anyway — even while winning on the constitutional point. That scenario, Kerr said, would mean the Supreme Court was merely issuing “advisory opinions,” and defense lawyers would see no reason to go for such unhelpful results.

The whole transcript is here. It's an interesting read.

In other SCOTUS news, the 9th Circuit got slapped. The LA Times:

The U.S. Supreme Court reinstated a Sacramento man's conviction and life sentence Monday for the rape of a 72-year-old woman in her apartment, dismissing an appellate court's decision that the prosecutor may have had racial reasons for removing two African Americans from the jury.

The Ninth U.S. Circuit Court of Appeals in San Francisco had granted a new trial to Steven Frank Jackson in July. The court said the prosecutor at Jackson's 2004 trial had used pretexts to justify his challenges to the two African American jurors, because the reasons he gave could have applied to jurors he left on the panel.

The Supreme Court, in a unanimous ruling, called the appeals court decision "inexplicable." The appellate judges should have deferred to state court rulings that upheld the prosecutor's explanations, the high court said.
***
"There was simply no basis for the Ninth Circuit to reach the opposite conclusion, particularly in such a dismissive manner," the court said.

Yikes.

While we're on the Supreme Court, it granted cert today in a sad case from the 11th, Maples v. Alabama. The issue: Whether the Eleventh Circuit properly held that there was no “cause” to excuse any procedural default where petitioner was blameless for the default, the state's own conduct contributed to the default, and petitioner's attorneys of record were no longer functioning as his agents at the time of any default.

Pretty crazy what happened in the case -- a death-row inmate missed a filing deadline that he never knew about because a BigLaw mailroom clerk messed up. The 11th Circuit said the Alabama courts were correct to procedurally default Maples, saying that finality wins out. Off you go to get your needle. No joke. Judge Barkett dissented and the Supremes took cert. (Judge Barkett's dissents are paying off). Here is the NY Times coverage of the case after former SG Gregory Garre of Latham & Watkins filed the cert petition.

Full disclosure -- I worked on the NACDL amicus brief filed in the 11th Circuit. Lisa Blatt of Arnold & Porter wrote excellent amicus briefs in the case.

UPDATED -- The New York Times covers the grant here. This is shocking to me: Troy King, Alabama’s attorney general, wrote that Mr. Maples had been represented by “a team of attorneys from a multimillion-dollar law firm” who should know that rules are rules.

“Filing deadlines apply to death row inmates,” Mr. King wrote. “Countless attorneys have missed filing deadlines over the years, and state and federal courts routinely dismissed their client’s tardy appeal as a consequence. This case is no different, and it presents nothing new or nationally compelling.”

Um, no different?! A man's life is on the line. Jeez.

Judge Barkett's "fervent, lonely" dissent reaches open ears of Supreme Court

One of my favorite readers has sent in this guest post, and I post it here:

Three days ago The New York Times highlighted Eleventh Circuit Judge Barkett as the author of a "fervent, lonely" dissent which expressed frustration with AEDPA's "thicket of procedural brambles." According to Judge Barkett's dissent, deathrow inmate Troy Davis was entitled to a hearing on evidence that strongly supported a compelling claim of actual innocence. The Eleventh Circuit held otherwise. But today, the Supreme Court relied heavily on Judge Barkett's dissent when ordering the district court to hold a hearing on the evidence of Davis' actual innocence. (The short, three-page order stemming from a rare grant of an original writ of habeas is worth reading for its powerful, plain, equity-driven prose.) Facing head-on against the dissenting Justices Scalia and Thomas, Justice Stevens, joined by Justices Ginsburg and Breyer, wrote:

JUSTICE SCALIA’s dissent is wrong in two respects. First, he assumes as a matter of fact that petitioner Davis is guilty of the murder of Officer MacPhail. He does this even though seven of the State’s key witnesses have recanted their trial testimony; several individuals have implicated the State’s principal witness as the shooter; and “no court,” state or federal, “has ever conducted a hearing to assess the reliability of the score of [postconviction] affidavits that, if reliable, would satisfy the threshold showing for a truly persuasive demonstration of actual innocence,” 565 F. 3d 810, 827 (CA11 2009) (Barkett, J., dissenting) (internal quotation marks omitted). The substantial risk of putting an innocent man to death clearly provides an adequate
justification for holding an evidentiary hearing. . . . But imagine a petitioner
in Davis’s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man. The dissent’s reasoning would allow such a petitioner to be put to death nonetheless. The Court correctly refuses to endorse such reasoning.

Judge Barkett had explained to The New York Times that her dissents are fueled by “mostly frustration that I cannot make people see what I see." Hopefully, today's ruling gives Judge Barkett a small sense of satisfaction that her dissent succeeded in making others see what she sees.