Issue 17: Tear Gas, Junk Science, Resentencings, & Evictions

September 18, 2023 By Kyle C. Barry

What you’ll read:

  • Washington Supreme Court Restores Sheriffs’ Power To Use Tear Gas
  • Another New Jersey Court Calls Shaken Baby Syndrome ‘Junk Science’
  • Louisiana Supreme Court Strikes Down Law Allowing Prosecutors To Reduce Excessive Sentences
  • State Supreme Courts In Wisconsin & Michigan Weigh In On Eviction Rules
  • Minnesota Supreme Court Holds That Marijuana Odor Does Not Justify Warrantless Auto Searches

Washington Supreme Court Restores Sheriffs’ Power To Use Tear Gas; Guest-Justice Casts Deciding Vote

In response to nationwide protests for racial justice—and to the brutal police violence used to suppress them—the Washington legislature in 2021 passed an array of reform laws that reined in law enforcement’s use of force. One of them set restrictions on using tear gas, including by requiring sheriffs to obtain approval from the county commission chairperson (the highest elected official in the county) before deploying tear gas to quell a “riot.” 

But the Washington Supreme Court on Thursday struck that down in a 5-4 decision, holding that the statute “interferes with the sheriff’s core function of quelling riots by delegating the discretionary decision to use tear gas … to another official.” According to the majority opinion, “this power and function has belonged to the sheriff at the time our constitution was adopted, and from time immemorial.” 

In dissent, four justices argued that quelling riots—and specifically, the decision to use tear gas in order to do so—is not a sheriff’s “core function” that is insulated from legislative interference. Instead, they wrote, the law at issue reflects

a policy decision that balances the risks and benefits to law enforcement, crowds, and the public at large, posed by use of one chemical agent, by allowing its use but requiring one extra step of oversight.  It is the legislature’s job, in general, to make such difficult policy decisions. It is the legislature’s job, in particular, to make such difficult policy decisions about the scope of sheriffs’ duties.

Notably, the case was decided while Justice Helen Whitener—a former public defender whose 2020 appointment made the Washington Supreme Court the most diverse appellate court in the country—was on medical leave. She was replaced by Superior Court Judge Millie Judge, who spent over a decade in a prosecutor’s office before taking the bench, and whose vote solidified the slim majority that restored sheriffs’ discretion to deploy tear gas. This is not to say that Whitener would have necessarily voted differently; indeed she was part of the court’s recent retreat on youth sentencing reform and dissented from the court’s groundbreaking ruling that barred armed police officers from transit fare enforcement. But it’s a reminder of how the high stakes of judicial selection extend to all levels of the judiciary, and how various administrative rules that receive little if any public attention—what happens when a judge is temporarily unavailable? Who is empowered to take their place? Who decides which judge fills in for each case?—can determine policy outcomes of profound consequence. 

Another New Jersey Court Calls Shaken Baby Syndrome ‘Junk Science’

Judges serve as gatekeepers of science in the courtroom, tasked with allowing reliable scientific evidence in, while keeping junk science out. But lacking the relevant expertise, they typically perform this function terribly, and rely on the dubious rulings and historical practices of other courts to admit evidence instead of conducting an exacting scientific review. Columnist Radley Balko, who has exhaustively covered this phenomenonwrote how a Texas court

upheld bite mark evidence in large part because it has always done so in the past. And it has always done so in the past because other courts had done so before that. [And] … many of those precedent-setting cases were supposed to be limited in scope, were misinterpreted by later courts or actually involved suspects who were later exonerated. These opinions aren’t scientific analysis so much as a jurisprudential version of the childhood game of Telephone.

The result has been an infusion of nonsense forensic “science” into the criminal legal system that leads to wrongful convictions and a growing number of exonerations

But last week a New Jersey appellate court broke that trend in a case involving so-called “shaken baby syndrome,” or “SBS,” and affirmed a trial court ruling that called the theory “junk science.” The New Jersey Monitor reports:

For half a century, doctors have blamed babies’ unexplained, sometimes fatal injuries on shaken baby syndrome, with hospitals reporting about 1,300 cases a year and hundreds of parents and caregivers getting prosecuted annually. . . . But the science behind it has increasingly come under suspicion, especially when there’s no obvious physical evidence of assault. A New Jersey appellate court Wednesday added to the growing resistance, siding with a lower court judge who declared shaken baby syndrome “junk science,” a ruling that barred prosecutors from bringing it up in the Middlesex County cases of two fathers who challenged their child abuse indictments.

In last year’s trial court ruling, Judge Pedro J. Jimenez Jr. wrote that a shaken baby syndrome finding is “more conjecture than a diagnosis because it is an option embraced once a diagnostician runs out of diagnostic options.” And in a lengthy opinion that details the available scientific evidence, the three-judge appellate court agreed: “the State has not demonstrated general acceptance of the SBS[] hypothesis to justify its admission in a criminal trial,” the court said.  “On the contrary, the evidence amply demonstrates that … biomechanical testing has never proven the premise of SBS, despite the hypothesis being grounded in biomechanical principles.” 

Cody Mason, a managing attorney with the Office of the Public Defender in New Jersey, praised the ruling: “The Appellate Division and the Supreme Court have shown again and again that they value scientific reliability over expediency or accepting things just because they have been accepted for a long time. This opinion is another step in that direction.”

Read more about shaken baby syndrome prosecutions in New Jersey [The Appeal]

Louisiana Supreme Court Strikes Down Law Allowing Prosecutors To Reduce Excessive Sentences

There is a growing, bipartisan movement to give elected prosecutors the power to revisit and reduce excessive prison sentences. At least six states have recently passed laws that allow prosecutors to seek resentencing (and for courts to order it) in cases where justice requires it, even if there is no particular legal defect with the original conviction. The advocacy group For The People, which has been integral to these efforts, explains that 

Whether the sentence is outdated, or the incarcerated person has rehabilitated, prosecutors have found that some past sentences may merit a second look. In states where Prosecutor-Initiated Resentencing laws are enacted, they have provided relief for youth charged as adults, aging populations who are no longer a threat to public safety, and incarcerated people whose outdated sentences would not be given out under today’s policies, among others. 

But that movement took a step back this month in Louisiana, where the state supreme court struck down a 2021 law that allowed district attorneys to enter into post-conviction plea agreements with people whose convictions are final. Prosecutors would agree on a new sentence, and then ask a court to impose it. Importantly, “the parties need not assert, nor is the court required to find, any legal defect requiring relief[.]”

The court’s 4-3 ruling undoing that process invoked the separation of powers delineated in the state constitution. In giving courts the power to vacate convictions and sentences without first finding some legal error, the majority said, the law improperly infringed on the governor’s exclusive pardon power. 

Justice Piper Griffin, the court’s lone Democrat, along with Chief Justice John Weimer and Justice James Genovese, all dissented. Griffin mined the historical record from Louisiana’s relatively recent 1973 state constitutional convention, and wrote that “the majority’s opinion is contrary to the original intent of the framers of the [1974] Louisiana Constitution.” In her view, the governor’s pardon power, while inviolate, may be supplemented. She wrote that the framers “explicitly intended to allow the legislature to extend its own version of the pardon power, provided the legislature did not limit the power granted to the governor.” 

State Supreme Courts in Wisconsin & Michigan Weigh In On Eviction Rules

State supreme courts do far more than decide cases. As the head of each state’s judicial system, they also have sweeping rulemaking authority to set policy on a range of issues. Among them is how courts process evictions and how the records from such proceedings are retained—decisions that can either promote access to stable housing, or send more people into a cycle of poverty and homelessness. 

In Wisconsin, the state supreme court, now with a 4-3 liberal majority, is considering a rules change that would shorten the time that eviction records are publicly available from 20 years down to one. Tenant advocates petitioned the court for the change. Legal Action attorney Korey Lundin told the court that such records negatively “impact a basic human need of having shelter, having a roof over your head for your family.” This impact is also deeply unequal, as Black women and other women of color are disproportionately likely to face eviction, according to the Eviction Lab at Princeton University. 

Legal Action asked for a similar rule change in 2021, but it “was not adopted because then-Director of State Courts Randy Koschnick determined a new record-retention policy would be too burdensome to implement,” according to The Cap Times. The court’s new majority voted to fire Koschnick last month. 

Meanwhile, the Michigan Supreme Court announced eviction rules changes that preserve some housing protections that began as emergency measures during the pandemic. Tenant advocates described the changes as a modest compromise, with the court “ever so slightly slowing down the machinery of evictions and offering modest additional procedural protections to ensure that tenants have more due process than has been the case.”

As Law360 reports, the changes:

keep intact pandemic-era innovations such as a two-hearing structure, in which most tenants in cases involving nonpayment of rent first get a pretrial hearing where they are advised of their rights, then a trial hearing to resolve the case. . . . Renters’ advocates said the two-hearing structure was important to reduce default judgments and improve tenants’ awareness of the resources available to them. Tenants must be informed of rental assistance programs during the process and have more time to request a jury trial. Tenants can also obtain an automatic stay of up to 28 days if they submit proof that they are applying for rental assistance.

And finally: The Minnesota Supreme Court ruled that the smell of marijuana alone is not a sufficient reason for police to search a car without a warrant. Earlier this summer, the Wisconsin Supreme Court’s then-conservative majority reached the opposite conclusion, holding that police may search people who are in a car that smells of marijuana, even though the odor may just as well be CBD, a perfectly legal, marijuana-derived substance.