The Rich Fruits of Mercy

I have always found that mercy bears richer fruits than strict justice.

- Abraham Lincoln

In urging voters to ratify the Constitution in its form delineating three distinct branches of government, Alexander Hamilton noted that of the three, the Judiciary would be in the least position to infringe upon political rights.  The Executive, he argued, had control of the armed forces; the Legislature commanded the power of the purse and thus the courts were a mere safe haven for judgment alone.  All these years later we look to the courts to protect individual liberties - as the Framers intended - but also fear the influence of the courts over political rights and expectations.

In a recent Ninth Circuit case, the majority opinion sought to champion individual rights - avoid a miscarriage of justice - by resurrecting a claim denied to the petitioner by the district court.  Essentially, the court requested briefing on a matter not raised and, based on that information, decided to allow a claim to go forward in the most sympathetic of cases: a man served 19 years in prison for a crime he did not commit based upon tactics and procedures of the Los Angeles police.  Among other things, the claim in question dealt with a false confession coerced from a 19 year old boy in the harshest of conditions and the most ruthless manner of psychological torment. If the claim were not available, the petitioner would lose all at stake under his §1983 claim.  All people who breathe air, save those in the opposing party, would want this man to succeed.

Undoubtedly, then, the court was correct in raising the issue sua sponte, asking the parties to brief the matter and remanding to the lower court to consider the claim.  Not so said the dissenting opinion in a powerful, logical and reasoned opposition tugging at all the right heartstrings for judicial restraint and strict construction.  The dissent raises the argument that Art. III courts decide cases in controversy on issues raised and do not have the leeway to make their own argument just because it is the right thing to do.  The dissent is specific and articulate and wrong.

The Constitution does not say that judges have no authority to protect an individual from losing a valid claim simply because it was poorly crafted.  It says, "[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made..." U.S. Const. Art. III sec. 2.  Judicial power is just that - the ability to admit human error but not let that be the sole reason to deprive a worthy claim.   The question in the Ninth Circuit case was whether the court could, on its own, ask the parties to brief and then rule upon an issue not originally claimed.  This is not only permissible but has been affirmed by the Supreme Court in opposition to a defendant's rights.  Certainly if the Constitution permits an appellate court to rule on a timeliness issue not raised which would obliterate a valid claim, it allows advancement of an issue not raised in order to avoid a miscarriage of justice.


Contrast this very thoughtful Ninth Circuit opinion with another federal court ruling on matters not squarely raised.  In Scott v. Sandford, the Supreme Court not only denigrated states rights (the state being Illinois) to confer citizenship but also invalidated the Missouri Compromise.  The issue of state sovereignty was not squarely before the Court, and the Missouri Compromise clearly wasn't since it has been effectively repealed by the Kansas-Nebraska Act two years earlier.  That sua sponte decision, it is fair to say, was error.

As a tiny bit of background, the Missouri Compromise sought to maintain a balance of power between states which had outlawed slavery and those which permitted slavery.  Maine would be admitted as a free state and Missouri would be admitted as a slave state with prohibitions on slavery in the northern reaches of the Louisiana Purchase.  That got thrown into the trash barrel as territories were settled for statehood; emigrants from both free and slave states moved into areas which would apply for statehood.  The Kansas-Nebraska Act allowed these territories, although in the "free" sections of the Louisiana Purchase territory, to decide for themselves whether they wanted to permit or prohibit slavery.  What the Court ultimately ruled in Scott v. Sandford - questions never raised, never briefed, not germane and contrary to common belief at the time - was that Congress could not regulate slavery in federal territories and that no person of African descent could be a citizen of the United States or any state therein.

So, in 1856, four years before South Carolina would secede from the Union ultimately bringing Mississippi, Alabama, Florida, Louisiana, Texas, Georgia, Virginia, Arkansas, Tennessee and North Carolina along to form the Confederacy, the Supreme Court of the United States did what Hamilton said we should not fear: the Supreme Court infringed upon political rights.  Where Illinois granted citizenship to Dred Scott and his family, the Court took it away.  Where the legislature had been seeking to avoid fracture and war by balancing states with slavery against states without, the Court took it away.  Where states sought to enfranchise all inhabitants, the Court took that away.

Hamilton's politically neutral Judiciary would infringe upon and deny rights in fewer than 70 years from that prediction.  The Court would swing back, but the notion that it would not impact political rights has not borne fruit.  Yet, even in the throes of a hotly contested presidential campaign, no one is talking about the Court.

The Supreme Court of the United States is now back in session with as political a docket as it has ever addressed.  Voting rights, affirmative action, competence of criminal defendants, the government's authority to conduct surveillance, and possibly the question of marriage equality, are all to be decided this term.  At least, that is that is on the docket - what the judges add on their own is anyone's guess.

Voting is a clearly defined right and, under the 15th Amendment and the 19th Amendment, any act by Congress designed to empower the citizenry to vote should be upheld as both Amendments include the phrase,"Congress shall have the power to enforce this article by appropriate legislation."  Only restrictions on voting should be invalidated.  But decisional law is split on this and the Court's rulings could impact the very core of those Amendments.

Other than voting, the questions relate more to ideals we perceive as rights: to marry, to equality in an unequal universe, to be free from being followed by our own government, to protection for the most vulnerable.  These are difficult questions to resolve under a Constitution that was designed as framework to join divergent groups and then modified to prohibit the denial of equal protection of the laws.  The bizarre "textualists" on the Court now threaten the vision of the Enlightened Framers who - it is very safe to say - did not intend for the document to be set in stone to terminology from the 18th Century.  Even traditional "strict constructionists" agree that the "original intent" was to be flexible and adaptable without straying from its purpose to bind together the diverse.

As the Court convenes this new session, how closely will it heed the prediction of Alexander Hamilton and not be a danger to political rights?  Will it seek, as the Ninth Circuit recently did, to protect the most vulnerable through its mandate to be independent in its judgment?  Perhaps this Court would do well to listen to the words of one of their former colleagues, a strict constructionist of the highest order, "[n]o higher duty, or more solemn responsibility rests upon this Court than that of translating into living law and maintaining this constitutional shield...for the benefit of every human being subject to our Constitution— of whatever race, creed, or persuasion." - Hugo Black.

Protecting individual liberties, dignity and self-empowerment embodies justice; and in the end, the role of all government is justice.

Oh, Pleas!

The plea bargain has become a mainstay of America's criminal justice system. See, The Charge posted on 5/24/12.  However, in order to advise a client on the benefits and drawbacks of a change of plea, counsel must know and explain the law surrounding the charge, the potential collateral consequences, and the government's best case.  Once aware of the entire landscape, it is up to the client alone to determine his or her own fate: to go to trial or to change a plea.  That decision is only valid if based upon knowledge, free will and an understanding of the criminal process.
 
As we acclimated to plea changes, we forgot that the right of a jury trial is endemic to our culture, mentioned in the Magna Carta in 1215, and referred to twice in our own Constitution: “[t]he Trial of all Crimes… shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed…” U.S. Const. Art. 3 Sec. 2, and the Sixth Amendment, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law…”  Waiving the right to be tried by a jury must be knowing, willing and voluntary, not a routine aspect of processing cases.   

Defendants plead guilty for a variety of reasons, among them are actual guilt, a fear that the consequences of trial would be far greater despite innocence, and bad advice.  If counsel has discouraged a change of plea, and such plea issues against the advice of counsel, it is not a violation of attorney-client privilege to make this information known; indeed that fact should be in the record.

But, that is not what happened in a recent Massachusetts case where a defendant pleaded guilty to offenses for which there was inadequate evidence of guilt.  The recited facts state that the defendant was removed from his home and yelled colorfully at the police; told to calm down or he would be arrested, the defendant continued to "disturb the peace" by essentially declaring that this was his house and that he did not like the police.  Ergo, they arrested him because, apparently, Massachusetts, the Cradle of Liberty, is now an authoritarian state wherein the government can remove a man from his home, encourage a crowd to gather, arrest the man for complaining in front of a group of people, and then have him convicted because "disturbing" a crowd assembled because of police actions and "mouthing off" are now criminal offenses.  The court tortures itself - and decent society - to uphold these convictions for disorderly conduct and resisting arrest - two classic charges claimed by people who, really, should not be permitted to carry guns to work. 

Shockingly, trial counsel let this happen, the government stood by and when the defendant moved to withdraw the ill counseled pleas, courts have upheld this travesty.  The opinion seems to contradict settled Supreme Court precedent, including the most recent cases on errant guilty pleas.  This may be a good time for the Supreme Judicial Court to act.

Defense attorneys must know the law.  They must know the elements of the statute with which their client is charged, they must research case law to understand what would constitute the offense and they must explain this information to their clients in a way the clients can understand.  Given that many involved in the criminal justice system have poor educational backgrounds, addiction and mental health issues, it is incumbent upon counsel to ensure that the client really does understand his rights, the facts and the law before advising on a plea.

Prosecutors must provide the facts upon which they intend to rely.  Massachusetts, and presumably other states, have broad "automatic discovery rules" requiring immediate and continuing discovery of a wide range of evidence.  Beyond automatic discovery, further information may be required before an attorney can reasonably counsel a plea change.  Indeed, principles of due process under the federal constitution require the production of material and relevant evidence to the defense.  

For example, when a Mr. Brady was tried for murder committed during a robbery, the government provided discovery to the defense.  Based on that evidence, Mr. Brady went to trial with a specific strategy: to take the stand, admit his part, explain that another committed the homicidal act, and beg for life in prison in lieu of capital punishment.  In Mr. Brady's trial, though, the jury disbelieved him and opted for death.  What the jury did not know was that the person Mr. Brady accused was also accused by the government...to whom he had confessed his guilt...which information the government failed to give to Mr. Brady or the jury.  When Mr. Brady obtained the confession post-conviction, he asked for a new trial which the Supreme Court ultimately provided for him.

But, Brady v. Maryland was not a singular case; in Mooney v. Holohan prosecutors tried the defendant on knowingly perjured testimony, in Napue v. Illinois, the government failed to correct blatant untruths uttered by their own witnesses, and in Kyles v. Whitley, the government failed to turn over specifically requested police reports and statements indicating that another man had committed the crimes for which Mr. Kyles was serving time.  These were not mistakes; they were intentional deceptions.  Even if the initial failure to disclose was inadvertent, the fight to the Supreme Court indicates a desire to circumvent due process.  In Mr. Brady's case, had he not obtained the evidence, the good people of Maryland would have murdered him-not in one of those heartbreaking cases of misidentification, he was not misidentified - but because a reasonable jury would have sentenced him to life in prison as he requested had they known the evidence kept secret by the government.  In all of these cases, had the defendant chosen to accept a guilty plea instead of taking his case to trial, the fraud would have gone undetected.

In addition to the general law and the government's best case, defense counsel has an additional burden to know, understand and explain interconnected collateral consequences prior to advising on a change of plea.  What other factors must be considered before a plea is knowing, willing and voluntary?  For starters,without apology for the bullet points:

• whether the conviction will affect immigration status; 
• if the defendant is from a different culture, does s/he understand the American criminal process;
• if the defendant does not speak English as a first language, has the native language interpreter sufficiently translated the lawyer's explanations and the client's concerns;
• if the defendant has ever suffered from mental illness or mental infirmity of any kind, does s/he genuinely understand all that is happening within the criminal justice system;
• whether the conviction will hamper or preclude a defendant from legally purchasing or possessing a firearm, an individual right under the Second and Fourteenth Amendments, in the future;
• whether the conviction will terminate a public housing lease;
• whether the conviction will suspend a driver's license;
• whether the conviction will initiate the revocation or suspension of a professional license;
• whether the current conviction will serve to enhance any later convictions.

While the vast majority of criminal cases resolve by means of a guilty plea, it is unlikely that all, or even most of them comport with these requirements to ensure that the guilty verdict reflects constitutional safeguards.   Due to the unreliability of plea bargaining, at least one person has suggested that plea process be reformed to act as something less than guilt. See, Gregory M. Gilchrist, Plea Bargains, Convictions and Legitimacy, 48 AMCRLR 143 (Winter, 2011).  But, even if we retain the very troublesome system as it is, we can improve the practice.

In Massachusetts, prosecutors are obliged to affirm, under the penalty of perjury, that they have satisfied the automatic discovery requirements; counsel must ensure that the certificate of compliance, as outlined in M.R.Cr.P. 14(a)(3), is filed before any plea negotiations occur.  Counsel can and should correspond with the client about each and every element of the offense and the government's anticipated evidence to prove each element.  Counsel can and should correspond with the prosecutor regarding every offer for a change of plea, obtain everything in writing, and provide that correspondence to the client.  Counsel must review potential collateral consequences including not just immigration matters, but all known potential problems resulting from a guilty verdict with the client.  Even these simple steps can improve confidence in guilty pleas.  Through these actions, it may become clear that a guilty plea is not the best alternative for the client and trial or dismissal may be appropriate.

When lawyers are "sworn in to the bar", what we swear or affirm is to uphold the constitutions of the nation and our state.  We, defense attorneys, prosecutors, and judges, denigrate that promise whenever we gloss over the jury trial provisions specified in the Constitution.  It is not that every single case must go to trial; that would be optimal but, sadly, not practical. But, neither should pressure force cases through the system sacrificing justice for efficiency.  

The framework for government in this country mentions criminal jury trials twice and so it is reasonable to presume that this is an important - if not required - provision that deserves respect.  As we look to modifications for that time honored practice allowing for a declaration of justice by an impartial group assembled from the community, we must remember, as Chief Justice John Marshall implored, that it is a constitution we are expounding.  

As we talk about the obligations of government to its citizens and inhabitants, as we discuss individual liberties and guaranteed rights, we defense attorneys have a special obligation to establish as fair and transparent a process as possible when we anticipate a waiver of those precious rights.  Courts will not impose one and prosecutors will not suggest one; defense attorneys are the final buffer between a free society and a police state.  Therefore, it is incumbent upon defense attorneys - the only folks in the entire process mandated to be there - to develop and implement protective guidelines in relation to change of plea proceedings for our clients, our constitutions and our communities.

When Battlefields Have Angels

I have an almost complete disregard of precedent, and a faith in the possibility of something better. It irritates me to be told how things have always been done. I defy the tyranny of precedent.

-Clara Barton 

Law is a playbook of memory.  We make decisions in large part due to decisions others made in the past.  And, in many ways, this is logical: we must have notice for the consequences of our actions.   But, also in law, as in life, sudden changes occur.  All at once the new replaces the old.  Both catastrophic failures and auspicious successes can force us to view the world through a different lens, valuing and addressing the picture in an entirely novel manner, sometimes recognizing the tyranny of precedent. 

One hundred and fifty years ago, this great nation was at war with itself – and not the war of words we wage today - but one with bullets and wounds and ever present death.   One hundred and fifty years ago, a mind boggling 23,000 Americans were killed, wounded or went missing in one day at the edge of a creek called Antietam.  It is so difficult to imagine that one hundred and fifty years ago, General George McClellan had Lincoln’s ear as leader of the Army of the Potomac and an unknown Ulysses S. Grant was mired in Mississippi with the Army of the Tennessee. 

On September 17, 1862, General Lee brought the war North; his entire army had crossed the Potomac into Union territory to engage.  The cannons would blast and guns would fire for twelve full hours before it all ended.  Although the casualty count was almost even, by the next night, Lee headed back across the river and by the following day he was in retreat.  Despite losing 550 more soldiers than the Confederate Army, the Battle of Antietam was considered a Union victory because Lee and his men returned to Virginia.  It was enough to prompt the preliminary Emancipation Proclamation on September 22, 1862 which gave birth to the January 1, 1863 Emancipation Proclamation changing the course of the war, of history and of the moral authority of a Union victory.  Brave men – on both sides – about to engage in the single bloodiest day of fighting ever known had no idea that their actions that day would alter the course of history for all mankind.

And, on that same battlefield was a truly courageous soul who brought her own medical supplies to the front in Maryland.  Clara Barton tended the wounded, assisted the surgeons, and literally lit the way for aid to continue into darkness with lanterns she had the foresight to pack.  Working tirelessly, she contracted typhoid and would be taken from Antietam in a stretcher.

The men who fought the battles and bore the wounds and suffered the ultimate sacrifice were unaware of the role they played in history.  They could not have known – any of them – that what happened on September 17, 1862 would not just change their lives, but life as they knew it.   Whether Clara Barton had any inkling of how the hiccup of Antietam would send history on a very different trajectory is utterly unknown.  It is doubtful that it would have changed anything for her.  Clara Barton was the kind of hero who did what she did because it was the right thing, not because she was looking to make a place in history or because she was a pioneer looking to open doors.  But, history she made and the doors she opened cannot be shut.

Clara Barton grew up in the great Commonwealth of Massachusetts where public education has been paramount since its earliest days.  As she taught in a New Jersey school where fees paid her salary, she discovered that some children could not afford to attend.  So, she opened a free school where all of the children could learn, no matter how much money their families had.  She filled a gap in the system.  Today, with college costs soaring, others fill in educational gaps as well.  So, her example shines still.

Frustrated because the school she founded would be run by a less qualified man, she left teaching and moved to Washington, D.C. where she got hired as a clerk in the U.S Patent Office, taking a position that was once held by Thomas Jefferson and one day would be held by Albert Einstein.  While there, she earned the same pay as her male counterparts.  Alas, the Secretary of the Interior had other ideas; he reduced her role and pay so she quit.  The equal pay conversation should sound familiar; it is a work in progress.  But, her example shines still.

While tending the wounded on Civil War battlefields, Clara Barton became aware that some families would not know what became of their sons and husbands and fathers and friends so after the war ended, she sent out hundreds of letters, made connections, and discovered the fates of over 22,000 missing men.  She did not do this alone; she received help from countless strangers and unsung heroes who wrote back, provided information, and assisted in this noble pursuit to tend to grieving friends and families.  Today, as we are engaged in military struggles, we are fully aware that war continues for families and returning veterans.  So, her example shines still.

After the war ended, she became involved in the women’s suffrage and civil rights movements.  Then the Franco-Prussian War broke out and Clara Barton traveled to distant lands to help strangers in need.  She devoted her energies to the Red Cross, a humanitarian group dedicated to neutrality and relief services in times of war.  Experiences both in the American Civil War and in Europe prompted her to create such a relief organization in the United States.  War weary Americans believed their fighting days were over and that no such organization would be needed; so she changed course and lobbied for a natural disaster relief organization instead.  Today, when forces of nature upend lives, the tireless efforts of the American Red Cross help to right them.  So, her example shines still.

From her years of caregiving, Clara Barton felt that everyone had the ability to learn basic lifesaving skills.  She founded the American First Aid Society (now merged with the American Red Cross) whose legacy continues in the hundreds of Red Cross sponsored First Aid and CPR classes offered each year throughout the country.  Today, too many know first-hand of tragedies natural and unnatural and of the need for everyone who can to help. So, her example shines still.

On September 17, 1862, Clara Barton brought nursing and teaching skills and a heart full of compassion into battle.  She would go on to brave new waters, including unofficial diplomacy aiding those in need in Spain and Turkey and Cuba; indeed she would continue her healing ways until she took her last breath 90 years after she took her first.  Americans today, as official  and unofficial diplomats and aid providers - charitable, exemplary, truly righteous human beings take their determination to do good all over the world.  So, her example shines still.

On a battlefield near a creek in Maryland one hundred and fifty years ago, men fought and died, men fought and were wounded, men fought and lived to tell the tale; and one woman nursed them all.  Without knowing it, they changed history.  McClellan’s incomprehensible delays undoubtedly prolonged the battle of Antietam; the extraordinary number of casualties – more for the Union then the Confederacy – made this battle real and meaningful for thousands of people in towns across the nation, divided though it was;  Lee’s retreat back into Virginia to regroup, but not to quit established enough of a signal for Lincoln to announce to the world that this war, this bloody, devastating war, would have a moral afterall.  It would be to rejoin these United States with liberty and justice for all.

The end of the war brought hope and change; not the least of which were the three Amendments to the United States Constitution that finally made the promise of America a possibility for all Americans.  Passing the Thirteenth, Fourteenth and Fifteenth Amendments equals the grandeur of the ratification of the original Constitution and its Bill of Rights and (okay, with one more addition) finally allowed the document to make sense from preamble to post script.

We owe a collective debt of gratitude to every single person who not only witnessed but made history one hundred and fifty years ago on that blood-soaked battlefield.  Six weeks after Lincoln announced that every advancement of troops would advance freedom, that Union victory was a moral imperative, his party would hold the House and gain five Senate seats securing the opportunity for the president to make his grand gesture on  January 1, 1863.  For all its limitations, it would spark excitement, end fugitive slave bounties, and welcome African American soldiers and sailors to the cause.  Today's pundits tell us that candidates campaign in poetry but govern in prose.  We owe a collective debt of gratitude to Lincoln’s ability to govern in poetry.  

In our playbook of memory – in our laws, in our approach to law, in our aspiration for a better future tied to, but not mired in, history -  we must heed their example: to do what is right with everything we have no matter what anyone else has done before.  

Serve. Fight. Struggle. Die. Survive. Advance. Retreat. Heal. Nurture. Care. Create. Contribute. Make history.

Consent of the Governed

On the surface, it seems intuitive that the affirmative defense of consent would be unavailable for armed home invasion and assault and battery with a dangerous weapon.  Those crimes suggest our worst nightmare of a stranger barging into our home to do us harm.  But, the recent Massachusetts case had a twist, several twists actually, of a ligature.  The issue in Commonwealth v. Carey was whether if the theory of defense were consent to sexual contact that included asphyxiation did the trial court err in failing to instruct the jury on consent as an affirmative defense?  As authority for the defense of consent, the defendant cited the landmark Supreme Court of the United States case of Lawrence v. Texas which struck down, as unconstitutional, criminal statutes for sodomy between consenting adults.  

The crux of the issue in Lawrence was whether the state could infringe on the private activity of consenting adults while in Carey the question was whether a criminal defendant would be entitled to a particular jury instruction.  And, the jury instruction request is not a new one; the defense in Carey asked for a review of older case law in light of the Lawrence decision since all prior Massachusetts cases on the issue of consent to assault and battery related to sexual activity predated that Court ruling.  In upholding its prior law despite Lawrence, the court discussed that it was not admonishing any particular sexual activity, but rather addressing the public's legitimate interest in the safety of all people.  In so reasoning, the court concluded that consent was not a viable defense to these crimes.

The Massachusetts Supreme Judicial Court has support for its decision.  In a New Jersey case the court held that even if the defendant and the complainant had an agreement that if she drank liquor, he would punish her physically, consent was not a defense to the charge of atrocious battery. That case referenced a law review article regarding the scope of consent as a defense,  Consent in the Criminal Law, 8 Harv.L.Rev. 317, 324 (1895), and discussed why the public has an interest in the personal safety of every person, even those who agree to be beaten.  That idea was also discussed at length in the informative opinion of this Montana case.

Rape and sexual assault trials have required a consent jury instruction when the evidence provides any support for the defense theory of consent. This is true both where lack of consent is an element of the offense and where consent is claimed as an affirmative defense to the force or compulsion element of a sexual assault charge. See,  State v. Lira, 70 Haw. 23 (1988), Mery V. Commonwealth, 12 Va.App. 21 (1991), State v. Koperski, 254 Neb. 624 (1998).  As a reverse of the sexual assault allegations, consent was not an available defense to criminal abortion; practitioners could be charged with the crime regardless of the consent to the procedure by the pregnant woman as explained in this really interesting article. 

Yet, consent is a viable defense to larceny accusations where the owner of the property agreed to its taking, even if the taker had felonious intent. Lowe v. State, 44 Fla. 449 (1902).  This is true even where there is an elaborate scheme involved. State v. Neely, 90 Mont. 199 (1931).  But, consent is not a defense to burglary where the entry to the home is induced by fraud and then exceeds the scope of consent by stealing. State v. Plumley, 181 W.Va. 685 (1989).

The defense of consent has a limited but vital role in criminal justice which was not destroyed by the recent case in Massachusetts.  And, all should be grateful for the efforts of defense counsel in calling older cases into question based upon more recent analogous decisional law.  This is not done nearly enough, yet it is a necessary practice if we are ever to allow law to progress, especially in this age of outstanding social science research calling into question ill begotten foundational concepts that have been accepted as true, but also in regard to changing social norms reflected in criminal law.

Perhaps more troubling than the limits on consent as a defense is the breadth of consent as an offense. Many times, the authorities claim that an individual consents to allow the police into his home or workplace or vehicle.  On occasion, courts rebuff the authority to consent.  And, where consent is outright denied, the police cannot enter, even when another member of the house consents to entry.  The Fourth Amendment, indeed, prohibits unreasonable searches and seizures - our papers our homes and our persons are protected from unwarranted molestation.

Analogous to the greater-good rationale protecting the complainants and victims in the assault and battery cases mentioned above, perhaps society is unprepared to accept that we ever consent to the police entering our homes when we did not call them there.  Can ordinary citizens truly waive their right to be free from unreasonable searches and seizures knowingly, willingly, intelligently and voluntarily when an armed police officer asks to come inside?  Is consent really a viable argument to circumvent the warrant requirement of the Fourth Amendment or the equivalent state constitution prohibition?

And, what about consent to the lesser intrusion still implicating the Fourth Amendment, the stop and frisk conduct of the police?  Once limited to occasions where police had a reasonable, articulable suspicion that a crime was being committed or had just been committed, it is now a common occurrence, particularly in the lives of poor young men of color.  The original idea was to protect the safety of police officers by allowing a minimal intrusion to check potential suspects for weapons, but this has been expanded to a general practice which really defies the constitutional principle of individual liberty in a free society and has nothing to do with police safety.  No one, no matter where s/he lives, can be presumed to waive the fundamental right to individual sovereignty and protection of his or her own body.

Indeed, that is the root of  the recent Massachusetts case of Commonwealth v. Carey: even if the defendant can illustrate that consent was given, it is not a defense society is willing to accept.  In law school parlance, the recent case concluded that consent is not available as a shield for certain criminal defendants.  But, another question, and one that also requires careful analysis of older decisional law, is whether consent has a proper application as a sword by the government. 

The government always bears the burden of proving that its search and seizure actions pass constitutional muster, whether it be by the four corners of a warrant, or facts and circumstances supporting probable cause to arrest or search, or "reasonable articulable suspicion" for a minimally invasive frisk.  This only becomes a constitutionally argued matter when the police discover potentially incriminating evidence or make an arrest and the defendant moves to suppress the evidence (or dismiss the case if the individual is arrested without probable cause).

But, what about the times that nothing is found, that an innocent person is stopped, assaulted, humiliated, made to feel like a second class citizen in his own neighborhood and no arrest is made because no crime was committed.  What about the times that the police just want to come inside to talk?  Where exactly is the Fourth Amendment line?  How closely do we hew to the ideals of our own Revolution to free ourselves from governmental tyranny? 

Whether we view the world in the now clearly defined party visions: through Republican eyes of the rugged individual braving the world on his own or through Democratic eyes which are all looking out for each other, do any of us really consent to government intrusion into our homes and our bodies?  And, if we do believe that consent permits a variance from a constitutional mandate, don't we need to define those boundaries, acceptable to everyone - not "just" poor people or people of color or people with accents or people that wear identifiable garments - but everyone including the judges and legislators crafting the limits?  How many of us would waive our right to be free from government intrusion into our homes and bodies?

And, how far does any such consent go?  To the stop and frisk devoid of purpose?  To the strip search for a traffic violation?  To the intrusion into our homes by fraudulent means?  Long before Thomas Jefferson waxed poetic on government's sole legitimacy emanating from the consent of the governed, and long before Eleanor Roosevelt admonished that no one can make us feel inferior without our consent, Dante explained that the worst of all eternities was reserved for those caught between heaven and hell, the coward angels whose silence in a time of great moral need in life echoed forever by endless lamentation in death.  Plato was not alone in assuming consent by silence. Current silence in the face of excesses to the limits of our consent to government searches and seizures will echo in sounds and loud cries until the end of time.

Legitimate Rhetoric

Abuse of words has been the great instrument 

of sophistry and chicanery, 

of party, faction, and division of society.  - John Adams

Words communicate much more than ideas, they often signal underlying themes.  In criminal law, we focus on the words of a statute to discern whether a crime was committed.  To determine the "legitimacy" of a crime, the guilty mind, mens rea, of the perpetrator is paramount since we punish actions motivated by thoughts, not simply actions and not just intent.  A certain candidate raised this issue in reverse when he flippantly declared that a "legitimate" rape, would not result in pregnancy.  The scientific basis for this conclusion resembles the seventeenth century Salem method where the innocent would sink (and drown) and the guilty would float and be put to death. This pregnancy determinant could open the door to a new defense - even with extrinsic evidence - a man's intent to force sex would bow to a woman's ability to become pregnant leading to exoneration for non-legitimate rape.  This, of course, is as ludicrous as the witch trials.

Looking to mens rea to give gravitas to crimes, it is perhaps surprising that in Massachusetts, joining the Communist Party carries a higher penalty than driving a car while intoxicated and actually killing another human being.  Political party affiliation - ostensibly guaranteed by the First Amendment - is a criminal offense weightier than a homicide caused by reckless endangerment.  Membership in an organization is worse than drinking, driving and killing someone, actions similar to Russian Roulette, the classic law school example for second degree murder.  The Cradle of Liberty sanctions this as legitimate.

Even the idea of a "legitimate crime" is odd since the word legitimate comes from the same root as law itself.  By definition, all crimes offend the law; therefore no crime can be legitimate - all crimes are illegitimate, i.e., not lawful.  

The notion of crime - what offends us and is worthy of punishment has changed markedly and continues to evolve.  Plymouth Colony made lying in public a crime punishable by 10 shillings or two hours in the stocks, a crime only 1/5 as bad as wearing strange apparel, a crime facing a 50 shilling fine.  Today wearing strange apparel is called fashion and lying in public currently takes on epic proportions of celebration.  So glorious is lying in public that a presidential candidate will not let fact-checkers dictate how his campaign is run.  A pity, too, because this candidate has the shillings to pay a fine if one were administered injecting much needed capital into an ailing economy.

And, so the public lying continues unabated.  We prohibit corporate false advertising, but we do not punish corporations who support false political messages.  These kinds of lies are protected speech just as lying about obtaining the Congressional Medal of Honor.   Fact-checkers have been helpful in evaluating rhetoric and claims by political candidates about each other.  But, where have the fact-checkers been when candidates invoke history as a defense of their policies?

The idea that "free enterprise" was part of the foundation of this nation is blatantly false; if anything, the Framers sought to regulate commerce and banks.  This is evident in John Adams' declaration that power believes it is doing sacred work when the opposite is true and Madison's certainty that if there were interest and power to do wrong, wrong would be done.  They advocated checks and balances within government and by government on private enterprise. Jefferson abhorred big business stating, "I hope we shall crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial by strength, and bid defiance to the laws of our country."   Even Hamilton noted that the purpose of government was to constrain the passions of man to conform to the dictates of reason and justice.  

Rather than "free enterprise", those who created this nation believed in restraint - not of individual liberty - but of corporate greed influencing policy.  The idea that unregulated industry is good for America or somehow embedded deep in the Constitution is a fallacy borne of a guilty mind seeking to make legitimate that which is not.  The Citizens United case championing the voice of big money in government is antithetical to the purpose and meaning of the First Amendment - disembodied corporations - and unions - are not citizens and have no right to vote; it is inconceivable and contrary to the stated intent of the Founding Fathers that they have a First Amendment right to influence elections.

Abuse of words.  Abuse of our collective past.  Abuse of the public trust.  To ensure that the first Republican president's vision that a government of the people, by the people and for the people shall not perish from this Earth, it is incumbent upon all of the people to meet the ambition of those whose whose love of business trumps a love of democracy with an equal ambition for liberty and justice for all. 

We sought to break from tyranny by instituting self governance, not no governance.  As a modern politician has oft stated, government is the name of what we choose to do together.  An earlier politician affirmed that government's goal is justice.  True that Americans of all stripes built this nation, individually and collectively; but equally true is that democracy is a precarious form of government subject to an early death if strident ambition is not met with reasonable restraint.

So, is it a criminal act - one of a guilty mind - when government cowers to corporate interests and lifts regulation on clean air, clean water, safe working conditions, fair wages?  Is it legitimate to pander to the fears of the American people to say that government is an evil answered only by the angel of private enterprise?  Well, as John Adams might have said, it is an abuse of words dividing society at just the time it needs to come together to address the enormous challenges this generation faces.