LOOSE CANNON: Report In Opposition To The Confirmation Of Janice Rogers Brown To The United States Court Of Appeals For The DC Circuit

Select Criminal Law Issues

Brown has a mixed record on criminal law issues. Several of Brown’s opinions on criminal law are cause for real concern. Once again she appears more interested in codifying her own views than in following the law and the facts of particular cases. In one case, she uncharacteristically sided with an accused rapist and picked apart the testimony of a juvenile rape victim, in an opinion that smacks of blaming the victim for her attacker’s behavior. In several other cases, Brown wrote or joined opinions which displayed her willingness to ignore important protections for criminal defendants contained in the Bill of Rights. In one case, People v. Mar, Brown was the sole dissenter in a case in which a majority of the California Supreme Court overturned the conviction of a man who was forced to wear a stun belt during his trial even while testifying. In addition to coming to a questionable legal conclusion, Brown’s sarcasm and caustic remarks raise serious questions about her judicial temperament. Brown has issued conflicting opinions on Fourth Amendment issues, and recently dissented from an opinion restrictively interpreting a drug rehabilitation law.

People v. Mar, 52 P.3d 95 (Cal. 2002).

According to the police, officer Mellon was called to investigate a report of a disoriented man. He found a man who stated that he could not recall his name and had no identification. The man voluntarily accompanied Mellon back to the station and remembered that his name was James Mar. The accounts by Mar, Mellon, and police officer Holm differed substantially in what happened next. At one point when the officers sought to move Mar to an individual cell, Mar became loud and angry. While in the process of falling, officer Holm hit Mar’s head twice with his fist, injuring some ligaments and breaking one of his fingers. Mar was charged with offenses including interfering with a police officer and resisting a police officer resulting in serious bodily injury to the officer (Holm’s broken finger.)

During the first day of trial, when Holm and Mellon testified, there were no incidents. On the second day of trial, Mar’s lawyer approached the judge and informed him that his client had been required that day to wear a “stun belt” which was capable of delivering 8-10 second shocks of 50,000 volts. The lawyer asked that Mar be allowed to remove the belt while he testified and the judge refused. Mar testified while wearing the belt, although he argued that it made him very nervous and agitated. The belt was never activated at any point during the trial. After hearing the evidence, the jury convicted Mar of interfering with and resisting a police officer. The judge found that Mar had been convicted of two previous serious felonies and sentenced Mar under the “Three Strikes” law to 26 years to life in prison.

On appeal, the Court of Appeal upheld Mar’s sentence, and the California Supreme Court agreed to review the case on the limited issue of the use of stun belts. After reviewing the case, a majority of justices on the Supreme Court overturned Mar’s sentence, finding that the fact that Mar made clear through his attorney that he did not want to wear the belt, and that his demeanor on the first day of trial when he was completely unrestrained gave no indication that restraints of any kind, much less restraints capable of delivering a 50,000 volt shock, were necessary.

Justice Brown dissented in a startlingly caustic and divisive opinion. The entire dissent is sprinkled with attacks on the majority opinion.Brown’s opinion was so unusual in its language and combativeness that the Los Angeles Times published an article about the dissent:

Justice Janice Rogers Brown's sharp dissents on the California Supreme Court have frequently vexed her colleagues, but never has the tension been more public than in People vs. Mar....

Brown's dissent belittled the court's research into stun belts and, in particular, its reliance on student comment in a law review. The student work came from St. Mary's University School of Law, and Brown made fun in a footnote of what she considered the school's obscurity.

"For those who may not have heard of it," the footnote read, "St. Mary's University School of Law is located in San Antonio, Texas." In the following days, a newspaper ran an article mentioning that U.S. Chief Justice William H. Rehnquist had taught at the school's overseas campus. Other U.S. Supreme Court jurists also have lectured there.

Someone must have pointed this out to Brown.

Court opinions are not final for at least 30 days, and Brown later modified her dissent by taking out the sarcastic reference to St. Mary's. She did not yield on her criticism of the majority's use of student research, however. In another modification, she put italics around the phrase "student comment" in a sentence that criticized the court's research.

George fired back with a modification of his own. "Of course," he wrote in a footnote, "it is customary for the opinions of appellate courts to include citations to the published work of student authors."

It is so customary that Brown herself has done it, he observed. Brown cited "a student Comment in Gonzaga Law Review, a student Comment in the University of Richmond Law Review and a student Note in the California Law Review" in a previous court opinion she wrote, the footnote reported. ...

The footnote about St. Mary's was not the only comment Brown made in her dissent that derided her colleagues.

She also accused her colleagues of "rushing to judgment after conducting an embarrassing Google.com search" and implied that a high school student could have done a better job than the chief justice in preparing the majority ruling.

"A high school student who turned in a research paper with a bibliography like that would be unlikely to get high marks for either the distinction or balance of the authorities cited," she wrote.
“Disorder in the Court Comes Out on the Record; Dueling Opinions by State Chief Justice and an Acerbic Dissenter Offer a Rare Glimpse of Frictions Customarily Confined to the Inner Sanctum,” Maura Dolan, Los Angeles Times, 12/27/02, California Metro, Part 2, p. 2.

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In re John Z, 60 P.3d 183 (Cal. 2003).

Seventeen-year-old Laura T. went with Juan G. to a Party at John Z.’s home where Justin L. was also present. During the evening, Laura went into John’s parents’ bedroom with Juan who indicated that he wanted to have sex. She told him that she was not ready for that type of activity. Later in the evening Justin L. also inquired as to why she “‘wouldn’t do stuff’” and she again said she wasn’t ready. 60 P. 3d at 184. At around 8:10pm, Laura was ready to go home but John asked her to come into his bedroom and talk. He said that Juan didn’t care for her and suggested that he (John) become her boyfriend instead. Later Juan entered the bedroom and both Juan and John asked Laura if she had a fantasy of being with two boys at the same time. She said she did not. Despite the fact that she repeatedly told them not to, the boys began removing her clothes and kissing and fondling her. Laura said that she enjoyed the activity in the beginning but objected when Juan put on a condom. John left the room and Laura tried to resist but Juan forcibly penetrated her. Due to Laura’s struggling, the condom fell off and Juan ceased his penetration. She told him “‘maybe it’s a sign we shouldn’t be doing this’,” and he said “‘fine’” and left the room. 60 P.3d at 185. While Juan was originally a codefendant in this case, at the end of Laura’s testimony he admitted to amended charges of sexual battery and unlawful sexual intercourse.

Laura testified that she began to try to find her clothes and John, who had at this point removed his clothes, reentered the bedroom. According to Laura, John “‘like rolled over [her] so [she] was pushed back down to the bed.’” John then penetrated Laura and rolled over so that she was on top of him and held her there. Laura testified that she kept trying to end the penetration but that he kept pulling her back down and then rolled her over on her back. Laura also asserted that she kept trying to pull away and told him that “‘if he really did care about me, he wouldn’t be doing this to me and if he did want a relationship, he should wait and respect that I don’t want to do this.’” 60 P.3d at 185. After 10 minutes, defendant got off Laura, assisted her to dress and find her keys and then she drove home.

On cross-examination Laura also stated that when John initially laid on the bed beside her he nudged her. And she stated that she had been on top of him for 4 or 5 minutes and that when she had tried to get away he had pulled her back down. When John rolled back over on her she kept repeating that she needed to go home but he continued to forcibly penetrate her. At trial John admitted that he had had intercourse with Laura but claimed that it was consensual.

The juvenile court found John guilty and the court of appeal affirmed. On appeal to the California Supreme Court, the majority also affirmed. Brown wrote the sole dissent. The majority stated that evidence of Laura’s “initial consent” to intercourse was “hardly conclusive.” 60 P.3d at 185. Still, because there was a conflict in court of appeals decisions, the court proceeded to analyze whether a man should be tried for forcible rape when a woman who initially consents to intercourse withdraws her consent but the man continues against her will. The majority found that under such circumstances forcible rape does occur. With respect to the specifics of this case, the majority wrote:

In the present case, assuming arguendo that Laura initially consented to, or appeared to consent to, intercourse with defendant, substantial evidence shows that she withdrew her consent and, through her actions and words, communicated that fact to the defendant. Despite the dissent’s doubt in the matter, no reasonable person in defendant’s position would have believed that Laura continued to consent to the act. As the Court of Appeal below observed, ‘Given [Laura’s testimony], credited by the court, there was nothing equivocal about her withdrawal of any initially assumed consent.
60 P. 3d at 186-187.

While Brown began her dissent by making statements suggesting she believes a woman has the right to withdraw consent to intercourse even once the act has begun, her opinion is cause for serious concern. Her dissent argued that the juvenile victim in this case never clearly indicated her lack of consent. 60 P.3d at 188-91. At one point, Brown wrote:

The majority finds Laura’s ‘actions and words’ clearly communicated withdrawal of consent in a fashion “no reasonable person in defendant’s position could have mistaken. But, Laura’s silent and ineffectual movements could easily be misinterpreted. And, none of her statements are unequivocal. While Laura may have felt these words clearly conveyed her unwillingness, they could reasonably be understood as requests for reassurance or demands for speed.
60 P.3d at 190 (citations omitted).
Later she continued:
In other words, an act of sexual intercourse becomes rape under these circumstances if all the elements of rape are present. Under the facts of this case, however, it is not clear that Laura was forcibly compelled to continue. All we know is that John Z. did not instantly respond to her statement that she needed to go home. He requested additional time. He did not demand it. Nor did he threaten any consequences if Laura did not comply.
60 P.3d at 190.
The majority opinion noted that John Z’s counsel had argued that:
By essence of the act of sexual intercourse, a male’s primal urge to reproduce is aroused. It is therefore unreasonable for a female and the law to expect a male to cease having intercourse immediately upon her withdrawal of consent. It is only natural, fair and just that a male be given a reasonable amount of time in which to quell his primal urge.
60 P.3d at 187.
The majority opinion rejected this argument outright as lacking any supporting authority and contrary to the law. Brown’s dissent does not mention the “primal urge” theory. But her dissent did raise the question of how much time a rapist should be given to desist once the victim has withdrawn consent. She wrote:
The majority relies heavily on John Z’s failure to desist immediately. But, it does not tell us how soon would have been soon enough. Ten seconds? Thirty? A minute? Is persistence the same thing as force? And even if we conclude persistence should be criminalized in this situation, should the penalty be the same as for forcible rape?
60 P.3d at 190.

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People v. Ray, 981 P. 2d 928 (Cal. 1999), cert. denied 528 U.S. 1187 (2000); People v. McKay, 41 P.3d 59 (2002); and People v. Woods, 981 P.2d 1019 (1999).

On Christmas Day 1996, two police officers entered Mr. Ray’s home after receiving a call that the door to the home had been open for several hours, that the occupants of the home were not believed to be at home and that the inside of the home was in a shambles. When they arrived, the officers noted that there was no sign of forced entry and no indication that any property had been stolen. Nevertheless, they decided to enter the home. Once inside, they discovered a large quantity of cocaine and money in plain view (the dissent noted that the money was found in a dresser drawer). Mr. Ray was charged with several drug-related crimes.

Mr. Ray argued that the police violated his rights by entering his home without a warrant as required by the Fourth Amendment. Mr. Ray also argued that the entry was unlawful because this was not a case in which the exception to the warrant requirement applied because the officers did not have reason to believe that someone or something was in imminent danger of serious injury. (This exception is known as the “exigent circumstances” exception to the warrant requirement.)

Justice Brown, whose opinion was joined by two other justices, said that the search of Mr. Ray’s home did not violate his rights. She did not justify the officers’ actions by relying on the exigent circumstances exception to the warrant requirement, but instead said that it was lawful as a reasonable part of the officers’ “community caretaking functions.” 981 P.2d at 934. Therefore, according to Brown, a warrant was not required and their entry into Mr. Ray’s home did not violate his rights. The opinion, if joined by a majority, would have created a new basis for warrantless searches and greatly expanded the grounds on which the police may enter homes without a warrant.

Three other justices also said that the warrantless entry into Mr. Ray’s home was legal, but they did so because they found that the actions of the police in entering Mr. Ray’s home fell within the already existing “exigent circumstances” exception to the warrant requirement. Justice Mosk dissented, writing: “I firmly reject the suggestion that we should create a broad new exception to the Fourth Amendment protection against warrantless searches, permitting police officers to enter a residence, even when there is no immediate threat to its occupants, merely as part of their ‘community caretaking functions.’ Such an exception threatens to swallow the rule that absent a showing of true necessity, the constitutionally guaranteed right to security and privacy in one’s home must prevail. I strongly disagree with the assumption that the warrantless search of a residence, under nonexigent circumstances, can be justified on the paternalistic premise that ‘We’re from the government and we’re here to help you.’” 981 P2d at 941.

In marked contrast to her opinion in Ray, Brown dissented in favor of Fourth Amendment protections in two other cases. In People v. McKay, she sought to exclude evidence of drug possession that was discovered after the defendant was arrested for riding his bicycle the wrong way on a residential street, suggesting the possibility of racial profiling. In response to the claim that the court’s hands were tied by precedent, she claimed that if “our hands really are tied, it behooves us to gnaw through the ropes.” 41 P3d at 641. And in People v. Woods, she dissented against the use of evidence obtained in a warrantless search of a person’s home based on consent given by the person’s housemate as a condition of probation.

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People v. Floyd, 2003 Cal. Lexis 4828 (July 21, 2003); “State High Court Narrows Drug Rehab Law,” Harriet Chiang, San Francisco Chronicle (July 22, 2003).

Brown wrote what was characterized as a “surprise” lone dissent from a decision holding that a measure that sends non violent drug offenders to treatment programs instead of jail does not apply to offenders who were pursuing appeals when the law took effect in 2001. Deputy Attorney General Whalen explained that the decision was expected because the law was “pretty clear,” but that he was surprised by the dissent of Brown, who was then under consideration for the D.C. Circuit post, because she is considered “a conservative in criminal matters.” The court majority agreed with Whalen’s view, explaining that it was adopting a “plain-language construction” of the law. 2003 Cal. Lexis 4828 at 12.

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