The Supreme Court became a significantly more hostile forum for criminal defendants in its nearly completed 1990-91 term, and no justice was more likely to vote against them than the court's newest member, David H. Souter.
Souter joined the court's conservative majority in expanding police search power, curtailing defendants' appeal rights and relaxing rules on the use of tainted evidence.In the 26 criminal law rulings in which he has participated since joining the court last October, Souter voted against defendants 20 times.
In those same 26 cases, the liberal Justice Thurgood Marshall voted for defendants 23 times.
Defendants lost 16 of those 26, statistically not as high as expected given the court's move to the right. But of eight key criminal law cases tracked by The Associated Press, defendants lost seven times.
In those, the court:
-Ruled that coerced confessions wrongly used as trial evidence sometimes may be deemed "harmless error" that do not require invalidating convictions.
-Made it far more difficult for defendants convicted in state courts to file more than one appeal in federal courts.
-Gave police new power to chase and apprehend people when officers have a hunch a crime was committed.
-Ruled that someone arrested by police without a warrant generally can be kept in jail up to 48 hours before a court determines whether the arrest was valid.
-Let police who get a car owner's permission to search the car's interior open luggage or closed containers found inside without getting a warrant or further permission.
-Said criminal defendants have no right to ask potential jurors about what specifics they have learned about their cases.
-Allowed police looking for smuggled drugs to board buses and randomly ask passengers to consent to being searched.
The one key victory for defendants focused on white-collar crime. The court blunted a federal law for fighting political corruption by ruling that prosecutors cannot prove a campaign contribution was extorted unless they show it was given directly in return for some official favor.
Had Souter not replaced the retired William J. Brennan, for decades the court's leading liberal, the court's 5-4 decisions in the coerced confession, 48-hour jailing and jury questioning cases almost certainly would have been decided the other way.
On other issues, Souter's track record to date has not been as conservative. But his criminal case votes should not surprise those who studied his 12 years as a New Hampshire Supreme Court justice.
Once asked how Souter would have described his judicial philosophy had he been asked such a question during his Senate confirmation hearings, he said, "I suppose I would have said I was a moderate conservative."