Practitioners take note. This opinion holds the seeds of controversy. SCOW’s ruling–that forcing a defendant to bare his teeth to the jury does not violate the 5th Amendment–is not so surprising. But Chief Justice Abrahamson’s concurrence, which announces the elimination of “opinion conferences” and new restrictions on the preparation of concurring and dissenting opinions seems alarming.
The State charged Gonzalez with battery by a prisoner, as a party to a crime. At trial, the court ordered the defendant to flash his platinum grill for the jury. The defense, of course, objected arguing that because Gonzalez’s teeth looked fierce the court’s order violated the Self-Incrimination Clause of the 5th Amendment and its Wisconsin counterpart. The defense also noted that the State could and did use other evidence to identify Gonzalez, so his unique teeth were immaterial and inadmissible evidence. SCOW rejected both arguments:
¶3 We hold that the evidence of his platinum teeth was physical evidence that did not have a testimonial aspect sufficient to implicate constitutional protections. The relevant question under the case law is whether the evidence in question expresses, makes use of, reveals, or discloses the contents of the defendant’s mind. Teeth do not do so. We also hold that Gonzalez’s teeth are material to identification because they are probative of Gonzalez’s identity, which was a matter at issue. This case therefore fits squarely into the long-recognized category of cases involving the body as evidence and does not offend constitutional principles against self-incrimination. We affirm the court of appeals.
So what kind of evidence does have a testimonial aspect under the 5th Amendment? The answer, according to SCOW, lies in U.S. v. Hubbell, 530 U.S. 27 (2000) (compelling the production of documents in response to a subpoena can, in some circumstances, implicate the Self-Incrimination Clause) and Pennsylvania v. Muniz, 496 U.S. 582 (1990)(where the defendant was accused of driving drunk and the physical evidence revealed his confused mental state, the evidence was testimonial and incriminating.) More specifically, SCOW explained:
¶19 The content or message [Gonzalez] claims the teeth convey——that he is tough and fierce (and therefore more likely to assault someone)——is not the type of disclosure that was problematic in Muniz; his teeth are not different from other non-testimonial physical evidence, such as tattoos, scars, muscular arms, teeth, and results of an in-court test of defendant’s eyes, that courts have deemed physical evidence whose compelled display violates no constitutional right——even though some of those physical characteristics might likewise carry negative connotations or communicate an image of fierceness or toughness to some jurors. Nor is there use made by the prosecutors of Gonzalez that is comparable to the use made by the prosecutors of Hubbell’s mind that rendered the physical evidence testimonial in that case.
This 7-0 decision on the substantive legal issue broke no new ground. However, Chief Justice Abrahamson’s concurrence announcing that back on September 25, 2014, a divided SCOW–without notice to the bench, bar or public–adopted a new set of operating procedures for circulating and mandating opinions is startling. The new procedure seems designed (in general) to address the long delays between oral argument and the release of SCOW’s opinion. Here is what the new regime does:
- It prevents dissenters and concurrers from holding up the majority opinion by imposing elaborate procedures and deadlines limiting revisions to separate opinions. See Abrahamson’s concurrence at 4.
- It eliminates “opinion conferences” where in the past the justices discussed drafts of opinions and declared their intentions to write concurrences or dissents. Now, within 10 days of circulation of a draft opinion, the justices–by email–must state whether they (1) join the opinion, (2) join the opinion if specified changes are made, (3) concur, or (4) dissent. If a justice requires specific changes, another elaborate procedure involving a series of short deadlines, kicks in. But no “opinion conference” ever occurs unless a majority of justices requests one. Id at 3 and 7
- It creates the possibility for a majority opinion to be released in advance of a separate opinion–if, for example, the separate opinion cites to a SCOW opinion that has not yet been released. Id. at 5.
- It precludes one justice from blocking the release of a majority opinion by a “hold.” That now requires a majority of participating justices. Id. at 5.
- It establishes deadlines by which majority opinions must be circulated. Those assigned in September, October and November must be circulated no later than January 31st. Those assigned in December, January, and February must be circulated no later than March 31st. And those assigned in March and April must be circulated by May 31st. If a justice cannot meet these deadlines, he or she must [you’ll love this] request an extension! Id. at 6. [Any bets on whether the decisions granting such requests will say “no further extension will be granted”? :-)]
- In theory, the maximum time from the initial circulation of the majority opinion to mandate is a swift 107 days. Id. at 6.
The new procedure (voted for by Justices Roggensack, Gableman, Crooks, and Ziegler) seems aimed at Chief Justice Abrahamson. Believe it or not, there was a time (way back in 1998-99, for example) when 71% of SCOW’s decisions were unanimous even though 4 of the justices were considered conservative. See data here. That term, the Chief wrote just 12 separate opinions and Justice Bradley wrote 14. Justice Prosser was the slow poke. On average, it took him 134 days from oral argument to file his opinions. But by today’s standards, he was Speedy Gonzalez [no pun intended.]
In the 2013-14 term, a mere 30% of SCOW’s opinions were unanimous (most of those involved civil cases). Justice Gableman claimed the lead for longest lapse between argument and the filing of his opinions–on average it took him 201 days. Justices Prosser and Roggensack followed close behind averaging 195 and 190 days respectively. The Chief wrote a staggering 33 separate opinions. Justice Bradley held at 14 followed by Prosser (13), Ziegler (9), Crooks (6), Roggensack (6), and Gableman (1). See data here. With these figures in mind, it seems possible that the authors of the new opinion procedures think that their prolific Chief is slowing them down (and perhaps making them look bad). Bottom line: Watch for swifter decisions. This one took 84 days. Dillard took 82. Consider whether the lack of discussion and new deadlines yield better reasoning.