On Thursday, June 2,, 2016, Associate Justice Carol Corrigan writing for the Supreme Court of California, which supported her opinion in the case of People vs. Sanchez unanimously, declared that the admission of testimonial hearsay proffered by “gang experts” against a criminal defendant violates the Sixth Amendment right to confront and cross-examine witnesses. The ruling was a lengthy, scholarly opinion, which is sure to have an impact beyond the borders of California. Justice Corrigan’s professorial writing navigated through several statutes of the California Evidence Code, influential law review articles, treatises authored by iconic legal experts, as well as numerous previous rulings of California Supreme Court and the U.S. Supreme Court on its way to forcing a dramatic change on how prosecutors may rely upon “experts” to persuade jurors to find that defendants should receive gang enhancements that quite often add many more years to a defendant’s sentence than the original underlying offense(s).

In practical terms, the ruling in Sanchez will force prosecutors to put on much more foundational evidence to prove a defendant is a gang member, before they will be able to present him or her as such for the purposes of enhancing their sentence. Up until the ruling in Sanchez, prosecutors have had the luxury of relying on a so-called “gang expert”; usually a sworn peace officer or a member of the law enforcement community, to testify as to who is a gang member and how the defendant acted for the benefit of the gang even if he or she is not a validated gang member. The Sanchez opinion restricts the prosecutor’s use of “hypothetical” questions that mirror or so closely align with the facts of the case as to be analogous, which the expert can testify to despite the fact that he or she had no personal knowledge of any of the facts or circumstances of the case. At its core, Sanchez states that an expert’s opinion must by necessity assume hearsay facts as true in order for their expert opinion to have any meaning for the jury to rely upon. It is this hearsay and the denial of the right to confrontation of assumed “hypothetical” facts that Justice Corrigan reasoned violates the Constitutional Right to Confrontation that is guaranteed by the sixth amendment.

Lawman says that this crucial modification of the law curtails one of the most powerful, unfair advantages that prosecutors have had at their disposal since the late 1980’s when the California State Legislature first began to increase prison sentences through gang enhancements. Through the 1990’s the gang enhancement penalties increased, until it reached its current apex. If found to be true by a jury, gang enhancements can often transform a sentence that may have been a few years, and stretch it into decades of time in prison, if not a life sentence under certain limited circumstances. The charging of gang enhancements by prosecutors over the years has disproportionately affected the African-American community and other communities of color. Lawman knows through many years of first-hand experience as a seasoned criminal defense lawyer how often questionable gang enhancements are added to the list of charges a defendant faces. These enhancements often have the effect of intimidating a defendant into pleading to charges supported by questionable evidence or sloppy police work in order to avoid the risk of losing at trial and suffering being put behind bars without hope of release for many, many years. Far too often, when properly guided by the hands of a skillful prosecutor, Lawman has witnessed the powerful persuasive effects of a “gang expert” upon a jury that otherwise might not be so inclined to believe a defendant acted on behalf of a gang. Lawman is applauds the California Supreme Court for its courage in getting this one right!

On Monday, June 20, 2016, Associate Justice Clarence Thomas writing for the majority of the Supreme Court in the case of Utah vs. Strieff, declared that the exclusionary rule, which is used to toss out evidence tainted by an illegal investigatory detention, did not apply to the admittedly unconstitutional conduct of a Utah police officer once he discovered that defendant Edward Strieff had an outstanding arrest warrant for a traffic violation.  The court reasoned that because the outstanding warrant was sufficiently “attenuated” from Officer Douglas Fackrell’s conduct following Mr. Strieff’s unlawful investigatory detention, the officer’s subsequent arrest, search and seizure of evidence from Mr. Strieff was “indisputably lawful.”  The court excused Officer Fackrell’s as “negligent,” characterized his unconstitutional conduct as a “good faith mistake,” and therefore and did not find his conduct to be a “purposeful or flagrant violation” of Mr. Strieff’s Fourth Amendment Rights.

Three Associate Justices, Kagen, Ginsburg, and Sotomayor filed two separate dissenting opinions.  Tal Kopan of CNN Politics reported that Associate Justice Sotomayor’s fiery dissent emphasized Illegal Stops ‘Corrode All Our Civil Liberties.’  Sotomayor stated plainly, “the officer found Strieff’s drugs by exploiting his own constitutional violation, the drugs should be excluded. “    Justice Sotomayor emphasized “the Utah Supreme Court described as “routine procedure” or “’common practice’” the decision of Salt Lake City police officers to run warrant checks on pedestrians they detained without reasonable suspicion.”  With this ruling, the U.S. Supreme Court overruled the Utah Supreme Court’s decision to exclude the seized evidence.

Lawman notes that this is another sad day in the history of the U.S. Supreme Court which has chosen to favor what can only be characterized as moving this country a significant step closer to martial law.  With this ruling, Lawman realizes the unfortunate truth; it is now open season for any officer in the country to hide behind this unfortunate U.S. Supreme Court which significantly diminishes citizens’ rights to be free of unconstitutional harassment by police officers.  Cops may benefit from unlawfully detaining and investigating citizens without reasonable suspicion in order to run warrants checks with the hopes of finding any type of warrant or citation to use as justification to conduct a full scale custodial arrest and search of a citizen.  Lawman’s own professional experience mirrors that of Justice Sotomayor. Individuals of color and those of lower socio-economic status are disproportionately likely to be subjected to “suspicion-less” stops and disproportionately likely to have warrants for minor traffic offenses and violations of ordinances.  Therefore, it is these groups of citizens and their communities that will be disproportionately impacted with the type of policing conducted by Officer Fackrell.  In the face of this ruling, Lawman believes it will take considerable and continuous activism by the affected communities to reign in law enforcement in order to curtail the wholesale use of this U.S. Supreme Court decision as a means to routinely violate citizen’s Fourth Amendment rights.