SUPREME COURT EASES LIMITS ON EVIDENCE

WASHINGTON -- The Supreme Court ruled Wednesday that evidence
obtained from an unlawful arrest based on careless record keeping by
the police may be used against a criminal defendant.

The 5-to-4 decision revealed competing conceptions of the
exclusionary rule, which requires the suppression of some evidence
obtained through police misconduct, and suggested that the court's
commitment to the rule was fragile.

Chief Justice John G. Roberts Jr., writing for the majority, said
that the exclusion of evidence should be a last resort and that
judges should use a sliding scale in deciding whether particular
misconduct by the police warranted suppressing the evidence they had found.

"To trigger the exclusionary rule," Chief Justice Roberts wrote,
"police conduct must be sufficiently deliberate that exclusion can
meaningfully deter it, and sufficiently culpable that such deterrence
is worth the price paid by the justice system."

That price, the chief justice wrote, "is, of course, letting guilty
and possibly dangerous defendants go free."

Justice Ruth Bader Ginsburg, writing for the dissenters, argued for
"a more majestic conception" of the exclusionary rule, and a more
categorical one.

The rule requires more than a cost-benefit calculus to deter police
misconduct, Justice Ginsburg wrote. It also protects defendants'
rights, she said, and prevents judicial complicity in "official lawlessness."

The case began when methamphetamines and a gun were found after
Bennie D. Herring, an Alabama man, was arrested based on police
officers' mistaken belief that he was subject to an outstanding arrest warrant.

That belief was based on incorrect information in the computer files
of a neighboring county's police department. The warrant had been
withdrawn, but the database had not been updated.

Calling the error "isolated negligence attenuated from the arrest,"
Chief Justice Roberts said the lower courts had been correct in
allowing the jury in Mr. Herring's case to consider the evidence. He
was convicted and sentenced to 27 months in prison.

The ruling itself is relatively narrow and is arguably merely a
logical extension of a 1995 decision, Arizona v. Evans, which
recognized an exception to the exclusionary rule for arrests
resulting from erroneous computer records kept by court employees (as
opposed to the police).

The decision in the case, Herring v. United States, No. 07-513, may
have broad consequences, said Craig M. Bradley, a law professor at
Indiana University.

"It may well be," Professor Bradley said, "that courts will take this
as a green light to ignore police negligence all over the place."

Chief Justice Roberts, who was joined by Justices Antonin Scalia,
Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr., said the
exclusionary rule was unlikely to deter isolated careless record
keeping and should be reserved for "deliberate, reckless or grossly
negligent conduct, or in some circumstances recurring systemic negligence."

"The deterrent effect of suppression must be substantial and outweigh
any harm to the justice system," the chief justice wrote. "Marginal
deterrence does not 'pay its way.' "

Justice Ginsburg, joined by Justices John Paul Stevens, David H.
Souter and Stephen G. Breyer, wrote that the majority "underestimates
the need for a forceful exclusionary rule and the gravity of record
keeping violations," particularly given the heavy reliance by law
enforcement on the electronic databases that "form the nervous system
of contemporary criminal justice operations."

In a separate dissent, Justice Breyer, joined by Justice Souter,
called for a "clear line" to be drawn between "police record keeping
errors and judicial ones."

That, Justice Breyer said, "is far easier for the courts to
administer that the chief justice's case-by-case, multifactored
inquiry into the degree of police culpability."

The decision in the Herring case divided along familiar lines. A
second case, about the role of the jury in sentencing decisions, was
also decided Wednesday by a 5-to-4 vote, but it had a less predictable lineup.

That decision marked either a pause or a stopping point in a judicial
march that began with the court's 2000 decision in Apprendi v. New
Jersey that the Constitution bars judges from making factual findings
leading to increased sentences.

The question in the new case, Oregon v. Ice, No. 07-901, was whether
the requirement established in Apprendi applied to the decision
whether a defendant convicted of multiple crimes must serve
consecutive or concurrent sentences if the harsher punishment
required a judge to find facts not determined by the jury.

Justice Ginsburg, joined by Justices Stevens, Kennedy, Breyer and
Alito, wrote that the Apprendi rule did not apply to that situation
"in light of historical practice and the authority of the states over
the administration of their criminal justice systems."

It was undisputed in the case that some state systems that give
judges discretion on this point are constitutional, including those
in which judges have complete freedom and those in which they are
allowed to opt for more lenient concurrent sentences.

The system used in Oregon, however, introduced an additional element
in allowing judges to impose harsher sentences. The Oregon law
required judges wishing to impose consecutive sentences in some cases
to make factual findings about, for instance, the defendant's
"willingness to commit more than one criminal offense," before
imposing the longer prison terms.

An Oregon judge did so in the case of Thomas E. Ice, who was
convicted of sexually assaulting an 11-year-old girl on two
occasions. The judge effectively increased Mr. Ice's sentence to 340
months from 90 months.

Justice Antonin Scalia, joined by Chief Justice Roberts and Justices
Souter and Thomas, dissented, saying the majority opinion was "a
virtual copy of the dissents" and filled with "repeated exhumation of
arguments dead and buried" in the Apprendi line of cases.

"I do not understand," Justice Scalia wrote, "why we would make such
a strange exception to the treasured right of trial by jury."