By Alexandra Jones | Courthouse News
Announcing the Supreme Court’s rejection of a case where jail officials searched the anus and vagina of an accused shoplifter, Justice Sonia Sotomayor said she did not turn down the case lightly but that the issue requires more input from other courts.
The arrestee Sharon Brown described her ordeal in a petition for certiorari, saying jail officials in Polk County, Wisconsin, had subjected her to the invasive search after her 2017 shoplifting arrest based solely on the speculation of fellow detainees that she was hiding drugs. When a hospital ultrasound detected no foreign objects, the officials then directed a male doctor to don a headlamp and wield a speculum to search her vagina and anus for contraband.
The found nothing, but a federal judge tossed her ensuing civil rights complaint at summary judgment, and the Seventh Circuit affirmed.
“It bears emphasis, however, that the degree of suspicion required for a search should be substantially informed by the availability of less intrusive alternatives,” Sotomayor wrote. “This court does not lightly permit an entire category of warrantless, invasive searches when less offensive options exist. Particularly searches of those who have not been convicted of any crime.”
Drawing upon Supreme Court precedent that, when breath tests are available to determine a suspect’s blood alcohol content, drawing blood is unreasonable absent a warrant or exigent circumstances, Sotomayor wrote that it is important to consider less intrusive alternatives in the context of searching pretrial detainees.
“Given the degrading nature of the search in this case, less invasive possibilities abound,” she said. “The court below did not address the option of a solely visual search, or multiple visual searches over time. … They could isolate the detainee and investigate further to obtain probable cause. They could await a monitored bowel movement.”
Brown’s attorney said Monday that he and his client are disappointed by the court’s denial, highlighting Justice Amy Coney Barrett’s need to recuse from the case because of her history on the Seventh Circuit.
“It appears that the prospect of the court having to hear the matter with only eight justices participating weighted heavily against the petition and it is a shame that justice for Ms. Brown and the consideration of this important question were affected by the timing of the matter reaching the Court,” said Vincent Moccio of Bennerotte & Associates. “The dehumanizing search that Ms. Brown was subjected to should always be the search of last resort. Here it was not and we are hopeful that the court will give such guidance to jailors and the lower courts in the future.”
Danielle Tierney of Axley Brynelson, representing Polk County, did not return a request for comment.
While there are no next steps for Brown’s case, Moccio said he thinks the Supreme Court could one day rule on one like it.
“I expect the practice of dehumanizing and humiliating searches in the jail setting will continue in numerous jurisdictions and the question will eventually be taken up by the high court when it believes it is in a position to fully rule on it,” he said.
The case was one of dozens that the Supreme Court turned down in Monday’s order list. One case, though, sparked a 9-page dissent, with Sotomayor saying she would have taken up claims by Frederick Whatley who says he was sentenced to death in Georgia as a result of his being shackled during the sentencing phase of his trial.
“Because I would not allow the state to put Frederick Whatley to death based on such a constitutionally flawed sentencing proceeding, I respectfully dissent,” Sotomayor wrote.
Whatley’s petition asserts that his defense attorney was constitutionally defective, failing to object when prosecutors restrained Whatley with shackles for the sentencing portion of his trial after he was convicted for the killing of a bait shop and liquor store owner during an armed robbery. But the visual props didn’t end there. The defense also allowed the prosecutor to have Whatley reenact the killing in the courtroom, complete with a fake gun, in order to resolve discrepancies between Whatley and the prosecution’s version of the events. At one point, the prosecutor even directed Whatley to show the jury how he pointed the gun at the owner by pointing it as the prosecutor himself.
While prosecutors say Whatley tried to execute the witnesses at the store after his hold-up, Whatley said the storeowner pulled a gun on him after handing over the money and that he had reflexively fired a single shot that hit the counter. After Whatley ran out of the store, the owner gave chase. There was a shootout, and Whatley killed him.
Sentenced to death, Whatley has been unsuccessful to date in his bid for habeas relief. Sotomayor said Monday she would have taken up the case.
“What was clearly unreasonable … was to ignore entirely the ways in which visible shackling is likely to distort the outcome of a capital sentencing proceeding,” she wrote. “For the grand finale of his cross-examination, the prosecutor handed Whatley a fake gun and had him reenact the murder, with the prosecutor playing the victim. Whatley’s chains clanked and rattled with every move, constantly reminding the jury that the court apparently believed he might do more than just pretend to kill someone in the courtroom if left unrestrained.”
Sotomayor also faulted the prosecutor’s closing arguments in which he told the jury Whatley was “going to kill somebody else unless you execute him,” that “prison was “only going to make him smarter and meaner,” and that he “should be given the death penalty because he is dangerous, he has had a history of violence, he’s never going to get any better than what you’ve seen right now.”
“Whatley’s chains, fresh in the jury’s mind from the previous afternoon’s spectacle, powerfully corroborated the prosecutor’s argument,” Sotomayor wrote.
Sotomayor added that the restraints were never proven necessary and at the very least could have been hidden from the jury. She said the prosecution did not have solid evidence that Whatley’s criminal history justified the death sentence although Whatley had prior convictions for forging a check, threatening a man dissenting with a shotgun and taking his wallet, and simple assault.
“Whatley’s criminal history was relatively minor and largely from his teenage years,” she wrote. “The statutory aggravators in his case were less serious than in many other capital cases. The State’s only evidence of lack of remorse was that Whatley likes football.”
This claim came from a sheriff’s deputy who said Whatley had wondered aloud after his arrest whether he would miss the Super Bowl while in custody.
Sotomayor meanwhile discussed the evidence from the defense: “that Whatley’s mother abandoned him, he never knew his father, and he was experiencing homelessness when he committed this crime.”
“Whatley’s friends and family testified to his redeeming qualities and begged the jury to show mercy,” she wrote. “If Whatley had testified free of chains, it is reasonably probable that at least one juror would have done so.
“On these facts, defense counsel’s failure to object to Whatley’s unnecessary shackling renders his death sentence not only unreliable, but unconstitutional,” Sotomayor maintained.
Whatley’s attorney, Thomas Bondy of Orrick Herrington, did not return a request for comment, nor did Georgia’s Senior Assistant Attorney General Sabrina Graham.