Discovering the Root and Legacy of Brady v. Maryland

Brady v. Maryland, 373 U.S. 83 (1963) ("Brady") is an odd case to celebrate as some sort of coup for defendants.  Brady is more of a puzzle than an answer - it exemplifies in many ways the struggle between the three branches of government more than the rights of the accused.  It all seemed to start when the Judiciary made a ruling that the Legislature demolished and the Executive latched onto the Legislative determination until the Judiciary had nowhere to go...but the Constitution.  And that, in brief, is the story of how the Supreme Court ruled against John L. Brady and defense attorneys everywhere rose up in cheers.

As a bit of background, in 1957, the Court decided Jencks v. United States, 353 U.S. 657 (1957) in which it afforded broad discovery opportunities in federal criminal cases.  In Jencks, the Court essentially ordered that prosecutors open their files - defendants need not make a preliminary showing in order to see the evidence known to the government. 

[T]he petitioner was entitled to an order directing the Government to produce for inspection all reports...in its possession, written and, when orally made, as recorded..., touching the events and activities as to which they testified at the trial. We hold, further, that the petitioner is entitled to inspect the reports to decide whether to use them in his defense. Because only the defense is adequately equipped to determine the effective use for purpose of discrediting the Government's witness and thereby furthering the accused's defense, the defense must initially be entitled to see them to determine what use may be made of them. Justice requires no less.

Jencks v. United States, 353 U.S. at 668-669.

The Court so determined under its powers to establish procedural rules in federal court, not under any specific article of the Constitution.  That opened the door for Congress to pass the Jencks Act, 18 U.S.C. sec. 3500 which is an odious and regressive, secretive rule placing incredible and unwieldy power into the hands of unelected federal prosecutors.  This, despite language in Jencks - harkening back to the earliest days of Supreme Court opinions - that the government has a choice: it can provide the evidence it has or it can let the defendant go free.  It cannot hold the defendant and deprive him of relevant evidence material to his trial. In Jencks, the Court ordered dismissal of any criminal charge if the government, "on the ground of privilege, elects not to comply with an order to produce, for the accused's inspection and for admission in evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of their testimony at the trial." Id. at 672.  In response, the federal government created legislation protecting secrecy.  Because Jencks was not grounded in Constitutional law, but rather in the powers of the Court which - apparently can be trumped by the powers of the legislature - the Court felt bound in subsequent cases to uphold the Jencks Act for federal cases.

The Court got its chance to take back control of trials - and the fairness of trials -when Brady came down the pike.  Brady was a fairly pathetic case on the facts; but the Court used it to reclaim part of the reach of Jencks that Congress took away. While Jencks was meaty and profound demonstrating the infiltration of Hoover's FBI into unions and the Communist Party and the convergence of the two in order to prosecute people for their political beliefs, Brady was a ridiculous street crime case.  Criminal defendants routinely cite Brady to suggest that the Due Process Clause of the 14th Amendment requires all kinds of disclosures in discovery by the government (which Brady does not say).  

The better argument is that the government does have those obligations for all kinds of reasons, but not because of anything stated in Brady.  First, and most significantly, Mr. Brady lost in the Supreme Court and his state court case did not declare any kind of new rule.  Second, at its base, Brady is an anti-death penalty case, not a case about discovery or obligations by the state to criminal defendants.  Third, if there is a due process right, why does it place a burden on the defendant to request evidence and require evidence that is exculpatory only?  And, fourth, the aspect of Brady touted as decisional law is nothing more than dicta.  In its semicentennial anniversary year, it warrants a very good read...as does the state case it upholds.  But more importantly, the language of the Jencks case should be revisited with the gloss of constitutional principles because that is the case that talks about broad, unfettered discovery. 

Mr. Brady and his co-defendant, Boblit, were charged with felony murder and tried separately: 

It is conceded that Brady and Boblit lay in wait for the victim, William Brooks, placing a log across his private driveway, in order to obtain possession of his car and money. Boblit was armed with a shotgun and Brady with a pistol. When Brooks got out of his car, Boblit struck him in the head with the barrel of the shotgun. They placed Brooks in the car, and after driving a certain distance, they carried Brooks into the woods, where one of them throttled him with Boblit's shirt. Each claimed that the other had actually strangled Mr. Brooks. They concealed the body, and divided the contents of Brooks' pocketbook containing some $250. They abandoned the car near Lynchburg, Virginia. Boblit went home, Brady fled to Florida.

Brady v. State, 220 Md. 454, 456 (1959).

Brady was tried before Boblit.  Prior to trial, Brady's attorney moved for discovery including prior statements of Boblit.  He was given all but one: the one in which Boblit mentioned the actual homicide.  Brady's defense at trial was not that he was innocent; he confessed the murder...indeed he testified at his trial to the full contents of his confession.  The defense was solely that he should be spared capital punishment.  He was not.  After trial, conviction and sentence, he discovered (through means that are never discussed in either case) that Boblit had made a statement in which he admitted committing the murder.  In the meantime, Boblit had elected for a bench trial where he denied the actual killing.  He was convicted and sentenced to life in prison.

Post-conviction, Brady argued that the failure to provide him with the unsigned statement by Boblit violated his right to a fair trial.  The Maryland court agreed, kind of:

There is considerable doubt as to how much good Boblit's undisclosed confession would have done Brady if it had been before the jury. It clearly implicated Brady as being the one who wanted to strangle the victim, Brooks. Boblit, according to this statement, also favored killing him, but he wanted to do it by shooting. We cannot put ourselves in the place of the jury and assume what their views would have been as to whether it did or did not matter whether it was Brady's hands or Boblit's hands that twisted the shirt about the victim's neck. ... it seems to us...that it would be ‘too dogmatic’ for us to say that the jury would not have attached any significance to this evidence in considering the punishment of the defendant Brady.

 Brady v. State, 226 Md. 422, 429-430 (1961).

So, what the court actually said was had Brady known that Boblit confessed to strangling Brooks, he might have called Boblit to the stand.  Had Boblit invoked his privilege against self-incrimination, he could have called the officer who took the unsigned statement to the stand.  This information might have spared Brady's life, or it might not have.  Maryland decided the case on general due process principles - it never mentioned the 14th Amendment but it did cite to some Supreme Court precedent; it may have been ruling under its own constitution - it is really unclear.  The gist of the case was twofold: (1) there was a potential that Brady took the fall for Boblit in such a way that that must have been known to the government.  Thus, failing to correct, clarify or notice a potential error before the court violated due process and (2) that Boblit seemed just as guilty as Brady so having one die and the other live seemed wrong.  This was especially true because the statement was presented (although not accepted) in Boblit's trial and was utterly ignored in Brady's.  But, really the decision reads as: the government should have given the information to the defense because in the end it would not hurt the government's case; this guy was guilty and would be convicted; failing to provide it looks like bloodlust for capital punishment.

Therefore, Brady's death sentence was overturned in the state court but he took the case up to the Supreme Court to argue that the government violated his right to due process in failing to provide the evidence and therefore he was entitled to a new trial on guilt, not just a new sentencing.  He lost that argument. Even if the Supreme Court ruling is as broad as people think (it's not),  a thorough read of the case clarifies that the "holding" in Brady is nothing more than dicta, and, it is dicta seeking to regain the breadth of Jencks through a 14th Amendment portal after so much damage from years of bad federal cases under the Jencks Act.

In Brady, Justice White thought the correct federal question was whether denying Brady a new trial on guilt as well as punishment deprived him of equal protection.  Brady v. Maryland, 373 U.S. at 91 (White, J. concurring). The dissenting Justices Harlan and Black also stated that the equal protection argument was the sole issue before the Court - and that it should have been decided in the affirmative if the evidence were admissible at trial.  Their interpretation of the Brady decision fascinates, averring that (1) by state constitutional provision, trials in the state of Maryland allow for juries to be the judges of both the facts and the law (jury nullification), (2) that judges alone may rule upon admissible evidence, and (3) the state admitted at oral argument that the Boblit statement would have been admissible in court (which is different from what the state court actually ruled).  Had the Court addressed the equal protection argument, the course of history really would have changed.  There was a potential to correct the wrongs of equal protection jurisprudence from the turn of the 20th Century and to bring the equal protection argument into the criminal realm - an issue discussed at length here.

This interpretation provokes great thought not only on the equal protection argument but also on the due process of law announcement in Brady which is this:

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

Brady v. Maryland, 373 U.S. at 87.

This is a head-scratcher because there was little favorable to the accused in the Boblit statement.  The statement itself was highly questionable, it being unsigned; it really was not "material" to guilt or innocence (and indeed, the Court rejected the guilt or innocence argument outright).   It does not say that the government was obliged to provide the statement if no one asked for it, it said it was error to "suppress" it from the requested discovery.   It's really a stretch to say that the failure to give the unsigned accusatory statement was a due process violation.  That "holding" has nothing to do with the actual case.  Justice White was right; the claim on federal due process was advisory, not declaratory.

But history makes mythology.  Lawyers everywhere completely and totally misunderstand the Brady decision (and the fundamental divergence of due process and equal protection clauses of the 14th Amendment.)  For 50 years, disappointed practitioners have hung their hats on a holding that was not a holding in a landmark case that was not a landmark case.  In that time, the equal protection clause has faded from criminal jurisprudence.  But (in a strange twist) assuming due process and assuming a defense request and assuming materiality, because it was decided under the 14th Amendment, the case does not affect federal litigants even though it sought to reinstate Jencks which arguably would only have affected federal litigants. The Jencks Act is still good law.

Perhaps rather than due process or equal protection, defense attorneys should forge new paths.  The 9th Amendment talks about the rights of the people not being denied just because they are not enumerated in the Constitution.  Broad legal process and equal protection under the law was well known at the time of ratification - indeed the 1641 Massachusetts Body of Liberties required jury trial by clear and sufficient evidence of guilt and prohibited coerced confessions for all...and even prohibited animal cruelty.  The Massachusetts Constitution, Pt. 1 Articles 11 and 12 (ratified in 1780) discuss the broad rights of the accused to obtain fairness and justice with any crime or offense fully, plainly and substantially described to him which certainly suggests a broad right of discovery.  The language of the 6th Amendment seems to urge an open prosecutorial file as well by requiring that the accused be informed of the nature and cause of the accusation.  Limitations on state or federal power - and limitations on state powers by federal power - has its root in the celebration and protection of individual rights.  The Framers did not favor prosecutors any more than they favored those accused of crimes; what they sought was fairness.

It is terribly important to remember that John L. Brady lost his case before the United States Supreme Court when it upheld the Maryland court ruling - he wanted a whole new trial and the Court merely upheld the reversal of his death penalty nodding approval to the Maryland court's decision. Brady was not a case of innocence bastardized by an over-eager system.  Withholding the evidence in his case may - or may not have - affected his death sentence, but all of the judges felt comfortable with him spending his life in prison.

Because Brady was not a particularly substantive case, because it may or may not have asked a federal question, because it is so amorphous and unsatisfying, because it really does not say much, because it puts a burden on defendants that does not belong there by requiring them to ask for evidence that may or may not exist and for the government to determine what is or what is not exculpatory, practitioners would do their clients - and justice - a favor by going back to Jencks for advice; in Brady,  the Court seemed to do the best it could to get back there, but fell far short.

Questions about discovery in criminal cases have centered around due process, the weakest and least defined of all of the possible arguments available.  Without abandoning it it, rather than worry about the due process dicta/holding of Brady, practitioners should explore the equal protection guarantee of the 14th Amendment, the history of the rights known to the people prior to the ratification of the Constitution under the 9th Amendment, the meaning of the term "the nature and cause of the accusation" in the 6th Amendment as well as those rights enumerated and explained in state constitutions in seeking guidance for discovery arguments.Because, after half a century, it's clear that Brady has failed to safeguard criminal trials.

The goal when individual liberties clash against government power is to institute rules seeking an even playing field.  Where government has the power to curtail freedom, Americans want as fair a fight as possible.  The reason the Constitution requires full and open discovery in criminal cases is that each defendant must understand, in as complete a way as possible, the charges against him in order to present his defense.  Broad discovery is not a burden on government.  In the sense that it averts trial by subterfuge, it embodies due process of law; but the concept of due process of law is too vague.  It lets the government bring guns to a knife fight.

Postscript: after his case was dismissed, Mr. Jencks continued as a union organizer and sometimes actor; he died in 2005.  Boblit is still serving his life term.  And Brady - the man who wanted to strangle Brooks - he was never resentenced.  Why would he want to be when another jury could have sentenced him to death.  He was ultimately paroled; his whereabouts are unknown.

After 50 years of trying to get this square peg of due process into the round hole of justice, it is time to start working with different pieces in order to obtain the promise of jury trials where the defendant is not hamstrung in his defense and the jury has the opportunity to understand the evidence in an unbiased way. 

Depending on the People: 100 Years of the 17th Amendment

In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. 

- James Madison: Federalist 51

The Constitution sought to include both state governments and the people in the two houses of Congress.  Direct elections for the House ensured a place for the people in the national government.  The Senate, by contrast, would be the voice of the states.   According to John Jay in Federalist 64, the populace had not yet become familiar with foreign affairs.  Therefore, elected state officers would be in the best position to select those of the highest intellect and integrity to promote national interests to the United States Senate.  Hence, Art. 1 Sec. 2, par. 3.

Having state legislatures select senators was one way to prevent extreme centralized federal power in a time of great uncertainty.  It was unclear how the unified federation would function and what types of evils or corruption lay ahead.  Thus, state legislative selection of senators was intended in part as a check on unwieldy government and in part as a means of establishing the new country as one of educated and wise men.  But, the Framers understood that this indirect election was hardly perfect; it was acknowledged, even in its day, as one way to kick the can down the road for future generations to ponder about the powers of the individual states in relation to the federal government. The more things change…

Parties and factions were well known to the Framers who sought to minimize their damage.  However, it is also possible that they did not anticipate the pending power of party bosses, the corruption of cronyism and the perils of patronage.  But, it soon became clear that state political parties (rather than elected officials) would hand-select Senators instituting a system neither intended nor desired.  In states where one party held sway, the legislature voted for the party stalwart.  In states where the legislature was divided, the decision was so contested that states could go without United States Senators, sometimes for years.  Art.1 Sec. 2 grew not to protect federalism in the sense of state autonomy; it became a means of promoting people significant in party politics in a particular state...something akin to an arbitrary, appointed government - something the Framers found odious.  As early as 1826, bills became commonplace on the House floor to insist on direct election of Senators.

Leading up to the Civil War, issues couched in federalist cloaks took center stage in a very ugly way; indeed, the idea that federalism itself is linked to preserving the horrific institution of slavery diminishes the import and beauty of the dual sovereign system and really misunderstands its true basis and why it matters.  John C. Calhoun (NOT, as some yahoos declare, Thomas Jefferson) started talking about states as if they were people.  People have rights; states have powers.  There is no such constitutional concept as "states rights".  States were at the Congressional table by legislatively electing United States Senators, but that was not as of right - it was more of an experiment.  Calhoun himself was a Senator appointed by the South Carolina legislature and thus query his loyalty under the indirect election construct: was it to the nation, to the people of South Carolina or to the officials elected to the South Carolina Legislature?  Indeed, the pretenders to the throne of federalism sought to secure their own, not the people's, rights.  They come today the same but in different garb called SuperPACs; new shields to wield the paper sword.  Neither the early "state's rights" advocates not the current ones seek to empower the people of the individual states; they seek to silence them. 

The franchise of voting is and has long been an American ideal.  Indeed, after the bloody Civil War ended, the Reconstructionist Amendments promised that the federal government would insist upon enforcing the elimination of slavery and indentured servitude, would decide who was a citizen and how to ensure protection of individual rights, and finally that there would be no infringement upon the fundamental right to participate in one’s own government due to race.  The 15^th Amendment seeks to ensure, not just presence at the ballot box, but also an equal presence without dilution of any person’s vote.

After the Civil War, after the Reconstruction Amendments, and while certain powerful members of formerly rebellious states were seeking to enforce voting discrimination as deeply as they could under the guise of "state's rights", several bribery cases occurred in state courts – some were bribes to vote for United States Senators (see, i.e., In re Wellcome, 23 Mont. 140 (1899)); others were accusations and convictions for United States Senators taking bribes (i.e. State v. Davis, 18 Del. 139 (1899)).  The system of state legislature elections of senators left the people with no voice but also the Senators with no accountability. As in the antebellum period, some legislatures deadlocked on selecting United States Senators leaving (depending on the lens one views) either the states or the people of those states without any representation in the Senate, sometimes for several years.  Everything intended by the initial idea of the state legislatures electing Senators had been destroyed by party factions; people were seeking to buy Senate seats and voters - even newly minted ones - were losing their one person-one vote mandate.

An odd twist of history includes the Treason of the Senate series in W.R. Hearst’s Cosmopolitan magazine in 1906.   The series portrayed a Senate for hire, beholden to corporate interests and devoid of loyalty to the state or the people.  The groundswell prompted a bill in the Senate to amend the Constitution which was roundly opposed by the entrenched factions – Republicans in the New England states and Democrats in the Southern ones – but the measure gained approval and passage by the required margins in both houses of Congress in May, 1912.  The first state to ratify the 17th Amendment for direct senate elections was the Commonwealth of Massachusetts; the measure gained inclusion into the United States Constitution 100 years ago (Southern strongholds including Virginia, Florida, Georgia, South Carolina, Mississippi and Kentucky never did vote to ratify – Utah rejected it outright in 1913).

In 1912 and 1913 the question was not one of federalism; those living at the time understood the radical, cataclysmic alteration of the relationship between the states and the federal government that occurred with the Reconstructionist Amendments.  The question was one of increased democracy.  It was one of fairness and it was one of inclusion.  The 17th Amendment intended to rectify the crimes of bribery and influence that had infused the upper house of Congress.  Indeed, the Amendment passed as House members enjoyed malapportionment, where rural votes diluted urban votes in many states by being given greater weight (perhaps the 17th Amendment foreshadowed modifications destined for that chamber.)  It was before effective voting rights legislation, the same legislation currently under attack.   The idea was to increase the franchise and therefore reflect better the American people and denounce the influence of special interests.

Almost immediately, the 17th Amendment altered the composition and texture of the Senate.  With Wilson in the White House and his progressive agenda on the table, direct election literally changed the Senate from Republican to Democrat in one election cycle.  Without this change, America may have been denied the compassionate brilliance of Brandeis on the Court, reforms in labor, banking, tariffs, and health care, all of which paved the way for bolder programs and ideals later administrations would propose.  Without the change from the state legislatures choosing Senators to the people, it is unclear how long it would have taken the country to propose, pass and ratify the 19^th Amendment.  

States always had the power to increase the franchise and it was always – and is now - in their interest to implement more liberal voting opportunities.  The more people eligible to vote, the greater the representation in Congress, the more power the individual states can wield.  It has ever been thus and yet the fundamental right of voting has continually been restricted, diminished, diluted and denied by state governments, the very entity the Framers believed would seek to increase, not decrease, its voice in the national government.  This was true from the earliest compromises including the horrid 3/5 compromise of Art. 1 Sec. 2.  Had all people counted for apportionment in the House of Representatives, the slaveholding states would have had MORE power, not less, in Congress; it was the slaveholding states who fought to have slaves count fully for apportionment.  If, as some at the time suggested, the wholly disenfranchised not counted at all for apportionment purposes, states would have had, early on, determined means of increasing the franchise and perhaps would have ended slavery sooner. That is, if apportionment were really apportionment of eligible voters rather than voiceless bodies, states would have an incentive to broaden the population eligible to vote.  It does not work that way which is exactly why, for example, towns with prisons full of inmates ineligible to vote want the inmates to count for apportionment but not for any other purpose.  A true one-person one vote mandate would only count eligible voters so as not to increase or dilute voting power.

Those who seek to restrict and dilute and deny voting rights today argue issues of federalism as if it were 1789 and the Constitution had not been amended (and also as if they understood the idea of federalism - it is NOT to empower individual people in federal matters, but to solidify powers of individual states).  No Amendment to the Constitution - not even the 10th - ever sought to increase the powers of state government.  The franchise Amendments, the 15th, 17th and 19th all sought to wrest powers away from the states and into the hands of the people directly.  Those who argue for state powers under the inaccurate and improper moniker “state’s rights” cannot also claim that they individually want the right to vote for their own Senator – or for the African Americans and women involved in that particular and odd movement – the right to vote at all.  It’s one Constitution; we cannot cherry pick the parts we like and pretend the rest does not exist.  Where federalism works and has ever been successful is where states become laboratories for improvements and progress including advancing equality on social issues and civil rights and creative enterprise.  Every other experiment in federalism leads to a contraction, rather than expansion, of the voice of the people thereby restricting democracy and freedom. 

A major contributor to passing the 17^th Amendment was disgust that United States Senate seats were up for sale in state legislatures.  They still are under new guise.  Indeed, query whether the 17th Amendment could impact Court rulings on the 1st Amendment thereby limiting outside influence at least in United States Senate races.  That is, unlike the language of Art. 1 in regard to House seats where "the People of the several states" elect House members, the 17th Amendment declares, "[t]he Senate of the United States shall be composed of two Senators from each state, elected by the people thereof..."

Massachusetts is engaged in a special election for the remainder of the term for our Class 2 Senate seat.  This is a post once held by Edward Everett whose lengthy speech preceded Lincoln’s Gettysburg Address, by John Weeks who initiated a federal land preservation act (and also his son, Sinclair Weeks), by Edward Brooke, the only elected African American Massachusetts Senator, by Paul Tsongas, the first former Peace Corps volunteer elected to the Senate, and by John Kerry, the current United States Secretary of State.  It is, indeed, the People's Seat and the Senator should be elected by the people of the Commonwealth without influence from special interests.

Although the Democratic candidate in the special election has requested the “People’s Pledge” that neither candidate benefit from special interest issue-oriented advertising, his opponent has not agreed.  Millions of dollars will pour into this campaign from unknown, undisclosed entities seeking to sway the votes of Bay Staters in an effort to corrupt this election in ways even more extreme than the scandals leading to ratification of the 17th Amendment.  Ironically, if the senate seat were still controlled by the Massachusetts Legislature, the result would be a foregone conclusion.  Though that is no answer; any election is better than legislative appointment.  While the people of Massachusetts have the constitutional right to elect their United States Senator by direct ballot, it sure looks like the seat is still up for sale.  Happy Centennial 17th Amendment; may your quest for democracy be fulfilled.

Counsel for the Indigent: An Unfunded Mandate

The Sixth Amendment guarantees that, “[i]n all criminal prosecutions, the accused shall enjoy the right… to have the assistance of counsel for his defense.”  Over the course of constitutional time, deprivation of counsel to the indigent has been a non-issue, has amounted to both a 6th and 14th Amendment violation, and appears to be heading back to obscurity due not to a new interpretation of the Constitution or less of a need for the indigent, but due, instead, to a lack of necessary funding and a laissez faire attitude of the current Court.

In the 1930's Alabama state law required the appointment of counsel for murder and rape.  The state court failed timely to appoint counsel in Powell v. Alabama, 287 U.S. 45 (1932).  The Court decided that by violating its own state law, Alabama thus violated due process of law under the 14th Amendment and required the appointment of counsel in a retrial (which never occurred).  In Smith v. O'Grady, 312 U.S. 329 (1941) an uneducated man, without counsel, was not informed of the charges against him but yet coerced into pleading guilty on the promise of a three year sentence.  Shocked when he received a twenty year term, he spent eight of those years seeking relief which finally came when the Court deemed Nebraska to have essentially violated its own law and thereby the due process clause of the 14th Amendment when it failed to appoint counsel.  The Hughes Court certainly seemed to head toward a general rule that states must make reasonable efforts to appoint (and thereby pay) counsel for the indigent.

Yet, in Avery v. Alabama, 308 U.S. 444 (1940), the Court seemed to care less for formalities such as preparation.  That is, at arraignment on Monday, March 21, 1938, two lawyers were appointed, as was the custom in Alabama for death penalty cases.  Trial was set for Wednesday but was not reached until Thursday when counsel moved to continue the matter (one had been on trial since appointment and the other had pressing matters in court until the night before trial), a motion which was denied.  But Alabama took the speedy trial right more seriously than the right to counsel; a jury found the defendant guilty and sentenced the defendant to death on March 24, 1938.

Alabama courts found that counsel represented the defendant well and even brought his claim up to the high court for review (the claim being the denial of a continuance to allow counsel to prepare for trial) thus the defendant was not denied the right to counsel under any view of the information.  The Court agreed, noting that in these rural counties everyone knows each other so nothing better would have resulted for the defense.  The Court found that because the trial judge carefully safeguarded Mr. Avery's rights, the fact that his attorneys were unprepared did not deprive him of the right to counsel.  It's a headscratcher.

A very itchy one.  In Betts v. Brady, 316 U.S. 455 (1942), the Court affirmatively declared that the 14th Amendment due process clause did not incorporate the 6th Amendment.  Thus, the state of Maryland did not offend the United States Constitution when it denied counsel to Mr. Betts in his felony case. In that case, the Court warned that denial of due process is pretty amorphous and really depended on a case by case evaluation (kind of like the current Court declared for warrants to extract blood).

So, despite the necessity of the eloquent "guiding hand of counsel" Justice Sutherland announced in Powell, in Betts v. Brady, the Court decided that the right to counsel was not a fundamental right, but rather one that had been relegated to legislative whim.  And, because the defendant was of ordinary intelligence and called witnesses in his behalf, he had a fair trial.  Indeed, if he had not - if there had been evidence that he was at a disadvantage for lack of counsel, a refusal to appoint would have resulted in the reversal of a judgment of conviction.  But, since the trial judge who heard the case determined that that did not occur, no biggie.  It is so much of a contradiction to Powell and Smith that three of the justices on the Court violently dissented.

They declared, "[w]hether a man is innocent cannot be determined from a trial in which, as here, denial of counsel has made it impossible to conclude, with any satisfactory degree of certainty, that the defendant's case was adequately presented."  Betts v. Brady, 316 U.S. at 476 (Black, J. dissenting).  The three dissenters - Justices Black, Douglas and Murphy, agreed with the incorporation doctrine and lamented that if the defendant had been charged with an identical federal offense, he would have been provided counsel.  Indeed, they said, no self respecting judge should conduct such a trial as it shocks the conscience; representation by counsel for all criminal litigants is a fundamental right.  But that dissent would percolate for 21 years.

In Gideon v. Wainwright, 372 U.S. 335 (1963), the Court accepted a handwritten pro se certiorari request.  It then appointed counsel and asked for briefing on whether it should reconsider its holding in Betts v. Brady.  Giving itself both the question and the lawyer from whom it wished to hear the answer was a bit of a hand tip.  So, the Court finally did accept both the incorporation doctrine and the idea of lawyers as fundamental requirements in criminal cases. Unless, of course, there is a valid waiver of the right to counsel in which case the defendant can self-represent. See: Faretta v. California, 422 U.S. 806 (1975)(but read Chief Justice Burger's dissent in which he cautioned that criminal defendants who waive counsel become easy convictions which undermines the public's confidence in the court system).

Fifty years later, it seems, we have come full circle not on the actual Constitutional principle, but on its implementation.  Demonstrating the preposterous nature of the Faretta decision, in Marshall v. Rodgers, 133 S.Ct. 1446 (2013), the defendant asked for counsel and then waived that right several times.  After conviction, he again requested counsel.  The Ninth Circuit ruled that there was a required presumption in favor of counsel in a post-trial, preappeal new trial motion (assumed, arguendo, as a critical stage of the proceedings).

The Court took the case to reverse the Ninth Circuit's ruling.  More precisely, the case reads like a 9 year old caught in a conundrum who declares, "I never said that!"  Apparently, the Ninth Circuit would put words into the Court's mouth that the Court is unwilling to declare one way or the other.  What the Court really said (in refusing to say anything) was that California did not make a mistake in saying that there was no clearly established precedent to suggest that there was a presumption for appointing counsel in critical stages of the proceedings where a person so requested and was unable to pay, especially when that person had decided to forego counsel once or twice which kind of ended badly and so maybe the request for counsel again was kind of legitimate...but the point is that there is no clearly established precedent so indicating - despite Gideon v. Wainwright which kind of really does say that... 

BUT (and this is the really important part) the Court also declined even to hint which way it might go if the question were actually presented.  "The Court expresses no view on the merits of the underlying Sixth Amendment principle the respondent urges. And it does not suggest or imply that the underlying issue, if presented on direct review, would be insubstantial." Marshall v. Rodgers, 133 S.Ct. at 1451.  So, by not telling and keeping that suspense high, courts can keep denying counsel to indigent defendants until one of them (possibly) can obtain appointed counsel in order to ask the question the right way.  In this version of "Mother, May I", instead of getting sent to the starting point for forgetting to say the magic words, the defendant gets to spend countless years behind bars as a guest of the state unless and until he gets a lawyer...which, remember...if he has ever self-represented - he may not be entitled to have ...or even know he may have given up - to ask whether the Court should reconsider its decision in Faretta v. California.

States may not be able to deprive counsel outright, but they can bring us to the Avery v. Alabama situation where local custom can dictate outcome just as easily as full deprivation can.   Another recent case was accepted on a speedy trial right issue, but really it was a right to counsel case.  Despite accepting cert, the Court dismissed Boyer v. Louisiana, SCT Docket 11-9953 (April 29, 2013) after hearing argument.  In that case, the defendant was charged with capital murder and, by statute in Louisiana, received two lawyers: one highly experienced in death penalty matters and the other - highly credentialed, but less experienced, from a state run agency called the Louisiana Capital Assistance Center.  The state required both counsel but conveniently had sufficient funds to pay only the less expensive attorney.  This caused considerable delays in the trial.

Despite the fact that the real question was, in charging the defendant with a capital offense without the resources to so prosecute, did the state delay his trial such that it violated the Constitutional right to a speedy trial (or the better question: does a state violate the 6th and 14th Amendments when it proceeds with criminal charges without the resources to provide an adequate defense thereby both delaying trial and depriving a litigant of the right to counsel), the litigant asked only whether the delay in payment to the lead attorney should be attributed to the state for purposes of determining one of the factors of the speedy trial analysis from Barker v. Wingo, 407 U.S. 514 (1972).  Only Justices Kennedy and Roberts did not chime in on this one.  Three Justices - Alito, Scalia and Thomas - concurred in dismissing the cert petition because, (1) the guy was clearly guilty, (2) the defense kept asking for continuances and it is really unclear why, (3) the defendant made out like a bandit as the state ultimately dropped the death penalty and (4) did they say yet that the guy was clearly guilty?  

But, four Justices - Sotomayor, Breyer, Kagan and Ginsburg - said that the question was whether a delay caused by a State's failure to fund counsel for an indigent's defense should be weighed against the state for purposes of a speedy trial assessment.  Given the facts as presented, this quartet would have so determined (and again this is key) without declaring that the defendant had been deprived of a speedy trial under the Sixth Amendment - ONLY that the factor should be weighed against the state.  No one seemed concerned about the lack of funding for indigent defense and its implication for the poor charged with crimes.

The big, bold questions of Powell v. Alabama and Gideon v. Wainwright have faded into technicalities and nitpicky formulations of questions to the Court.  But, as Chief Justice Marshall declared, this is a constitution we are expounding.  And not just a constitution, but our Constitution - We, the People's Constitution - the one we ask people to fight and die for, the one we hold dear to protect our right to speak publicly and live privately...that Constitution.  The one that guarantees the right to counsel and due process of law.  The Court in Gideon asked counsel to address the question it wished to address because it sought equal treatment under the law.  Now the Court shies from questions and answers alike.

To expound is to set forth.  The current Court issues decisions that are not decisions - witless, cowardly refusals to affirm the rights, privileges and freedoms we have grown to expect and these ideals that establish the framework of our society.  They are an insulting exercise in futility kicking the proverbial can down the road worse than their legislative counterparts.

Democracy is expensive and worth every penny.  So, when the state chooses to charge people with crimes, it must provide adequate funding for the police to be well trained, for the prosecution to protect all of the people ever vigilant of the rights of the defendant, for defense counsel to act as that bulwark between a free people and a police state, and, if required, for corrections facilities to be humane and just.  When society begins to pick and choose which parts of the system can be funded and which will suffer, courts have the duty to step in on the side of the most vulnerable.  

The first Justice Marshall exhorted that the Constitution had weight and meaning beyond the intimate details of a case; it was for keeps and we had to be careful about setting forth its parameters.  Some years later, seeking to blanket the least fortunate in the protective covering of the Constitution, a different Justice Marshall explained  that, "[h]istory teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure."  Constitutional rights cannot be beholden to state budgets any more than they can bigotry.  The cowardice of the Court reflects that indigent defense is unpopular and will, therefore, be sidelined without the courage of those determined, ever vigilant, to ensure the continuation of the rights guaranteed by both war and peace.  It is, afterall, a constitution we are expounding.

Record by Proxy: Vicarious Consent Just Crept Into Massachusetts

Boston has been inundated with photos and surveillance tapes for the worst of reasons since April 15, 2013.  We learned, or perhaps were reminded, that we are being watched.  And, as a matter of legal fiction, we consent to being watched pretty much all the time once we leave home.  What we do and with whom may be caught on still or moving pictures.  Outward gestures, glances, clothing choices and all non-verbal communication are fair game.  What we say, however, is usually thought to be a private matter.  The government needs to obtain a warrant to listen in.  This is particularly true inside our homes.  Those conversations are certainly within a sphere of privacy.

The thought that comes to mind in cases of wiretapping is of political corruption or organized crime - secretly recorded conversations, maybe with informants wearing wires.  It is not of a videorecording device in the bedroom of a family member to catch a suspected pedophile.  In Commonwealth v. F.W., 465 Mass. 1 (2013), a woman had been sexually assaulted by her paternal grandfather as a young girl.  While she did not report the abuse to authorities, she did tell her grandmother but it made little difference.  Understandably, she became distant from her father's side of the family.  For unexplained reasons, as an adult, she resumed contact with this branch of the family.  The branch of the family, including the (allegedly) abusive grandfather live at the woman's father's home.

This woman has a sister who is a non-verbal, autistic, minor child.  Despite her disabilities, the sister conveyed a joyful disposition, often smiling and acting affectionately.  Thus, the woman became alarmed when her otherwise happy sister became withdrawn, sullen and tearful.  The woman suspected the grandfather of sexually assaulting her.  Because her sister cannot speak or, it seems, convey specific information through a computer writing program, asking her about allegations would not be productive. The woman did not remove the child from the home, but instead set up a videorecording device in her father's bedroom to confirm her suspicions.  Which, sadly, it did.

The videorecording device captured video of the grandfather (allegedly) unzipping his trousers and forcing oral sex upon his disabled granddaughter.  The defendant did not move to dismiss the video itself; he moved to dismiss the statement on the recording where he (allegedly) said - as he held the back of the victim's head near his crotch.  The statement, "put it in your mouth" was the subject of the motion to suppress which was premised upon the federal wiretap statute that prohibits intentional interception of an oral communication. 

Query whether, if the case went to trial, assuming the video came in along with evidence of the victim's change in demeanor and the woman's testimony of her former abuse by the defendant (as part of a pattern or practice) anyone would need to hear that statement in order to convict him of the charges related to sexual assault of a minor.  It seems highly unlikely.

The Commonwealth, for reasons that remain a mystery, argued that the defendant had no reasonable expectation of privacy in the statement because the recording was not in a private enough place since the defendant did not have exclusive use of the bedroom where the woman set up the camera.  This "argument" does not even make sense: the man was in his own home, a home he shared with others, but clearly within the sphere of privacy protected by the Fourth Amendment and Art. 14 in light of the fact that they both stress the idea of security in one's home.  The SJC made short shrift of that.  Conversations inside the home are private enough to warrant protection.

The argument, presumably by the defense, was that the federal wiretapping statute applied in that what the woman did by recording a conversation to which she was not privy and in which no party had consented violated the federal law.  In response, the government argued that the statement should not be suppressed because the woman could vicariously consent to a recording of the conversation for her disabled sister.

Ummm...no.  The Fourth Amendment and Art. 14 apply to unreasonable searches and seizures by the government.  It does not apply to sisters concerned about their autistic siblings.  While it is true that if the sister had intended to intercept an oral communication or knowingly intercepted an oral communication in violation of the statute, the statement could be subject to suppression (or other exclusion from trial).  But, those were not the facts of the case.  The adult sibling did not recall any statements by her grandfather to her when he (allegedly) abused her.  The adult sibling could not have intended to intercept oral communication because the minor child could not speak.  To the extent that ANY statement would be uttered (and there would be no reason to think there would be), it would be a surprise.  The purpose of setting up the camera was to confirm the suspicion of abuse, not to intercept an oral communication.  Because any violation of the statute requires scienter, the adult sibling did not violate it.

It is inconceivable that the events would have taken a different course if the video were silent.  Law enforcement reviewed information provided voluntarily by a citizen who conveyed not only her own history with the defendant but evidence of the defendant sexually assaulting a disabled child.  Upon review of that evidence, they acted appropriately in calling the defendant and asking him to come to the police station which he did. 

The police provided constitutional safeguards pursuant to Miranda v. Arizona and obtained a valid waiver of rights, pursuant to due process of law as deemed adequate by Supreme Court decisional law.  The officer asked the defendant about his past contact with the woman and with the victim.  The defendant not only admitted his actions but when asked specifically about observations the officer (hypothetically) saw on the video, the defendant said that he, "just wanted to see what she would do and got carried away."  There was no basis to move to suppress that confession.  With or without the statement to the child, this case was a good candidate to ask for mercy from the court.  There is no identification problem; there is no question of the offense; there is no consent defense available to sexual assault on a minor, disabled child.

The statement itself adds nothing to the prosecution's case and even if it could be suppressed, gains nothing for the defendant.  This was a clear case of a defense attorney without a strategy or purpose resulting in potentially disastrous decisional law.

There may be evidentiary reasons to exclude the video and even the statement from a trial, but suppression is unavailable.  The insidious argument that the federal wiretapping statute applies to such a recording is not only terrifying but it is manifestly wrong.  There was no intent to capture an oral communication; a woman set up a videocamera that the parties did not know was there which could happen to, oh I don't know, a presidential candidate at a private, expensive dinner party.  Even if it were subject to the wiretap statute and even if there were a hint of a willful violation of that statute, that might present a civil charge against the woman or a request to the federal government to prosecute.  It might even advance reasons to exclude the evidence from trial, but that does not make it eligible for suppression.


The first question regarding a motion to suppress is to discover the reason for suppression, if any.  Given that there was no government action, the only authority for suppression would be the statute.  But, there was no knowing intention to intercept an oral communication and thus the statute does not apply.  That ends the discussion.

Of course, that did not stop the SJC from taking the question on a rare interlocutory appeal by the defendant and doing the analysis backward.  Rather than starting with the statute to see if there was a violation, it started with the defendant's reasonable expectation of privacy for the conversation which is just...weird.  The question on the constitutional principle is not one of privacy at all, it is privacy from THE GOVERNMENT.   From the government, people have a right to privacy in the area around their homes, inside their homes and in their bedrooms.  But, the government did not invade a the area around a home or inside a home or a bedroom.   The government looked at a videorecording and questioned a defendant who confessed. In any event, the SJC determined that people DO have a reasonable expectation of privacy inside bedrooms of their own home (whew!) and then addressed the vicarious consent issue.

Vicarious consent is a bizarre legal fiction that came into being when parents in bitter divorces started intentionally recording conversations between their minor children and their former spouses on their home telephones.  Neither the child nor the other parent knew of the recording.  That DOES violate the federal wiretapping statute because...it...is...wiretapping.  And it is a violation of the federal statute which requires that at least one person to consent to the recording (and it really offends the concurrent Massachusetts law which requires all party consent - a fact utterly ignored by the SJC in its vicarious consent ruling).

The parent who recorded the conversation illegally could claim that s/he vicariously consented on behalf of the minor child and therefore single party consent would be satisfied.  In Pollack v. Pollack, 151 F.3d 601 (6th Cir. 1998) the mother recorded conversations between her minor child and the child's father and step-mother and provided the offending ones to her lawyer who then contacted the authorities about the father's emotional abuse of the child.  The father sued the mother under the federal wiretapping statute.  The mother claimed that she only recorded the conversations due to a concern for her daughter.  While the Court of Appeals for the Sixth Circuit applied the fictional vicarious consent doctrine, it did not conclude that the mother acted solely for pure purposes and remanded the case with instructions of application of the doctrine itself.

Vicarious consent has never been accepted formally by the Supreme Court for any purpose, let alone in  criminal case alleging a violation of the wiretap statute.  The courts that have accepted it seem to apply the doctrine in family disputes and related cases.  The doctrine makes some sense in the matter of child custody cases: if the party can demonstrate that the recording was not out of malice and was made solely out of concern for the child and the recording itself illustrates some nefarious actions by the other parent...then the court might be warranted in restricting or limiting or constraining visitation with the child, or even ordering some counseling for the parent...not send the parent to prison.

When permitted, vicarious consent has applied solely to parents and it seems applicable solely in civil disputes.  But, in Commonwealth v. F.W., the SJC allowed an adult sibling acting in the best interest of the minor child to consent vicariously to recorded conversations between the (allegedly) abusive grandfather and the child.  It did so, presumably, because the child's father and grandmother incomprehensibly did not step in to protect the little girl.  The sister's actions were noble and pure in every sense, but that does not make them a legitimate exercise of vicarious consent, even if vicarious consent were a legitimate concept in a criminal case. 

Even the idea of vicarious consent to record a "conversation" in which only one party could speak is bizarre.  Query the application if an actual, voluntary conversation took place, perhaps between a 15 year old girl and her 17 year old boyfriend; is that enough to establish vicarious consent for a parent or a concerned sibling to record the conversation?  What about a concern about smoking marijuana?  Hanging out with a rough crowd?  Given the ruling in Commonwealth v. F.W., what authorizes vicarious consent for conversations under the federal law?  And, by whom?  What application is there of the Massachusetts law which requires all party consent to recorded conversations?  Even if there is some validity to a notion of vicarious consent, tracking criminal offenses between family members does not fall within its ambit.

This is not to say that the woman was wrong to make a videorecording.  It was not wrong of her to turn the evidence over to the police.  It was not wrong for the police to question and arrest the defendant upon his confession.  And, it is not wrong to prosecute the defendant for heinous crimes against one of the most vulnerable members of society.  It is not even wrong to move to admit the videorecording and the statement recorded. 


Knowing that - regardless of the ruling on the admission in evidence of the statement - the video of the defendant (allegedly) opening the zipper of his pants and holding the back of his disabled granddaughter's head to his opened zipper would be admissible in court, there was no rationale to move interlocutorily regarding the statement.

Had the courts simply analyzed the statute and not the substantive issue, the result would have been the same (no suppression of the video or statement) but vicarious consent would not have been introduced into Massachusetts jurisprudence.  This is why it is really important to read the statutes first and seek their application after, not the other way around.