June 24, 2016

Sonia Sotomayor likes books and is a hero


Associate Justice Sonia Sotomayor, with books. Via Wikipedia.

Associate Justice Sonia Sotomayor, with books. Via Wikipedia.

Justice Felix Frankfurter was many things: an early columnist for the New Republic, a co-founder of the American Civil Liberties Union, an immigrant who had a tremendous impact on his adoptive country, and a person named Frankfurter who narrowly missed having a colleague named Burger (though not, so far as I know, a frankfurtier of any renown himself). And he was also an Associate Justice of the United States Supreme Court, in which capacity, in a 1939 decision, he formalized a hitherto inchoate legal rule he poetically named the “fruit of the poisonous tree doctrine.”

The fruit of the poisonous tree doctrine states that when when a criminal defendant is being tried, evidence will be admissible against that defendant only if the police officers who gathered it did so lawfully. If a cop obtains a search warrant for your house, executes it, and finds, say, some meth, that cop can arrest you, charge you with possession, and, at trial, introduce the meth, which will be persuasive evidence that you possessed meth and likely lead to your conviction. (Sorry! Though, what were you doing with all that meth?) On the other hand, if a cop hates people with your particular hairdo (not me, I think you look great), stops you, illegally searches you without reasonable suspicion, and finds meth on you, that meth is generally not admissible in court, and your conviction becomes very unlikely. The rule is meant to the protect the Fourth Amendment rights of everyone subject to US law, and to disincentivize illegal searches by police.

Earlier this week, the US Supreme Court decided an appeal from Edward Strieff of South Salt Lake City, Utah, who was found in possession of meth in December 2006, tried, and convicted. Detective Douglas Fackrell had seen Strieff enter and then quickly exit a private home where he suspected drugs were being sold, detained him, called in his driver’s license, discovered that he had an outstanding arrest warrant for an old traffic violation, and then illegally searched him. The trial court admitted the drugs as evidence anyway, and Strieff was convicted; he appealed all the way up to the US Supreme Court, which ruled against him in a decision written by Justice-of-few-words Clarence Thomas. While Fackrell lacked legal justification for the search, Thomas, after “evaluat[ing] the causal link between [Fackrell’s] unlawful act and the discovery of evidence,” concluded that the existence of the outstanding warrant, and the lack of bad faith on Fackrell’s part, made the meth admissible as evidence.

In a dissent that has been called “ringing,” “epic,” and an “atomic bomb,” Justice Sonia Sotomayor writes that the fruit of the poisonous tree doctrine is meant to apply to exactly such cases as this — where broad police action finds a straw to grasp and tugs hard.

In the fourth and final section of her dissent — the only one in which she is not joined by the Notorious RBG — Sotomayor broadens the frame of her commentary (some citations have been removed for easier reading):

Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name….

This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact… [which] may factor in your ethnicity, where you live, what you were wearing, and how you behaved.….

This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, many inno­cent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner. But it is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95–136 (2010). For generations, black and brown parents have given their children “the talk”— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).

That’s right, Sotomayor just named-checked a cast of writers including Michelle Alexander, W.E.B. Du Bois, James Baldwin, and Ta-Nehisi Coates.

There’s nothing new about literature finding its way into court proceedings. Chief Justice John Roberts chose to write his 2008 dissent in Pennsylvania v. Dunlap as a style parody of hardboiled detective fiction. Charles L. Brieant’s 1987 decision in Carl Marks & Co, Inc. v. Union of Soviet Socialist Republics (uh, sic), begins with a quotation and exegesis of William Gaddis’s JR. The authors and publishers who’ve been hauled into court at one time or another are far too many to count (although we’ve tried).

But in this case, it seems authors are being invoked in a sincere effort to bring law into conversation with some of the people it marginalizes; implicitly, the citations urge us to take up and read. Legal discourse all too often makes itself insular, and Sotomayor’s dissent reminds us that books have always been a news wire from the front lines of the human project. Extra extra, read all about it: the person at the other end of that search has, in Sotomayor’s words, the legal status not of “the subject of a carceral state, just waiting to be catalogued,” but rather “a citizen of a democracy” — and must be treated accordingly.



Ian Dreiblatt is the former Director of Digital Media at Melville House.