Supreme Court Proves Receptive to Prosecutor Appeals : Law: Of the 12 cases the justices have decided to review, all involve actions by prosecutors. None have been accepted from criminal defendants.

WASHINGTON —  From a prosecutor’s viewpoint, the Supreme Court has had a perfect record so far in its new term.

Each of the 12 cases granted a review since the term began Oct. 2 involved an appeal by a state or federal prosecutor after a criminal defendant had won in a lower court. The justices also have considered hundreds of appeals by defendants who lost in the lower courts. And so far, they have not granted a review to a single one.

For criminal law experts, the pattern of the Supreme Court under Chief Justice William H. Rehnquist is now familiar: Government prosecutors get a second chance in the high court, but criminal defendants do not.

For the lower court judges, the message is also clear: Read criminal rights narrowly, and give law enforcement the benefit of the doubt.

Says University of Michigan Law Prof. Yale Kamisar: “The rule seems to be that if there is a liberal ruling below, they will take it and overturn it. If it is a conservative result, they leave it alone.”

Last year, for example, an Orange County man appealed to the Supreme Court after he had been stopped at a highway checkpoint, charged with drunken driving and convicted in the California courts. The justices quickly dismissed the appeal.

This year, on Oct. 2, the justices announced that they would hear an appeal brought by Michigan prosecutors in a similar case. This time, the appeal was of a decision by the Michigan Supreme Court, which ruled in favor of an intoxicated driver and concluded that motorists’ constitutional rights are violated by “sobriety checkpoints.”

Since the high court hears only about 160 cases each year among the tens of thousands of criminal cases that emerge from the federal and state courts, the selection of cases for review is significant. Each week, Rehnquist prepares a list of appeals to be discussed at the court’s weekly closed-door conference. Since he was first appointed by President Richard M. Nixon, Rehnquist has argued repeatedly that the courts have tilted too far in upholding the rights of criminals.

Now he can count on the votes of four fellow conservatives--Justices Byron R. White, Sandra Day O’Connor, Antonin Scalia and Anthony M. Kennedy--to review and overturn liberal decisions from the lower courts.

Over the last year, the results in criminal cases have been nearly as predictable as the court’s selection of cases for review.

In its last term, a criminal defendant did not prevail in any case of broad significance. For example, the justices ruled that drug agents can stop and question travelers who fit the profile of a drug courier. They ruled that police cannot be penalized for losing potentially vital evidence. They ruled that officers may use low-flying helicopters to search for marijuana in residential neighborhoods. They ruled that prosecutors may confiscate the money that a drug defendant would use to hire a lawyer. They ruled that murderers who are juveniles or retarded may be put to death.

During the Earl Warren court of the 1960s, the pattern was nearly reversed. Then criminal defendants who contended that their constitutional rights had been violated often found a receptive audience at the high court.

The landmark rulings of the Warren era arose when defendants challenged state court rulings. The case of Mapp vs. Ohio in 1961 established in state courts the “exclusionary rule” barring evidence obtained illegally. Gideon vs. Wainwright in 1963 established a defendant’s right to have a lawyer. Miranda vs. Arizona in 1966 required police to warn suspects of their rights.

Only two justices--William J. Brennan Jr. and Thurgood Marshall--remain from that time, and rarely can they muster three other votes to form a majority.

Unlike those of the Warren era, this year’s criminal cases have names like New York vs. Harris, Michigan vs. Harvey, Maryland vs. Buie and Florida vs. Wells. (The party raising the appeal is cited first.) None of these cases appears likely to yield a landmark ruling, but each gives the conservative majority a chance to cut back on the reach of a constitutional right.

This week, the high court once again ran true to form. On Monday, the justices handed down orders in 89 cases, agreeing to hear three of them and rejecting 86.

Of the dozens of criminal appeals that were denied, many raised legal questions that likely would have gained the attention of the Warren court.

For example, an Oregon man, Kenneth Jaffee, was arrested for growing marijuana plants in his yard that were estimated to be worth $1,000. He was convicted and fined $50. But in a subsequent civil action, government agents seized his house valued at $95,000.

His appeal to the Supreme Court raised the question of whether the government seizure of his property could be considered an “excessive fine” banned by the Eighth Amendment. Without comment, however, the court dismissed his case (Jaffee vs. U.S., 89-73).

Of the three cases the justices chose to hear, only one was a criminal case and it involved an appeal by a New York prosecutor. In the case, a local judge allowed Thomas Corbin to plead guilty only to drunken driving after he crashed into another car and killed its driver. When prosecutors later brought an indictment for homicide, the state court said that this amounted to double jeopardy barred by the Fifth Amendment. On Monday, the Supreme Court announced that it would hear the case (Grady vs. Corbin, 89-474).