Incarceration Without Representation

Colonial juries often acquitted criminal defendants to save them from harsh punishment.  Jury nullification was common long before the nascence of the Constitution.  As exemplified by the trial of John Peter Zenger, juries had emerged as a protection of individual liberty as against the power of the state.  Not only do criminal defendants have the right to an impartial jury (or, in the case  of Massachusetts, judgment of peers) but also members of society enjoy the right to participate as jurors. The very idea of jury trial is to assure the fairness of trials for the government, the accused and the community.

It would seem, then, that composition of the jury is equally important to the defendant, the prosecutor and the rest of society.  The Constitution, indeed, offers a variety of avenues to travel when we journey into jury trial terrain: Art. 3, Sec. 2 guarantee of trial by jury for criminal matters, the 6th Amendment's requirement of an impartial jury, the 14th Amendment guarantee to equal protection and to due process of law.  Further, each state constitution may provide new routes.

Along with a defendant's right to an impartial jury, due process of law and equal protection is the individual citizen's right to serve on a jury and society's right to have confidence in the fairness of trial verdicts (Art. 4, Sec. 2 and the 14th Amendment both guarantee the privileges and immunities of citizenship for all and the Preamble collectively acknowledges the unification of all Americans).  The pervasiveness and diversity of these rights encourages evaluation in regard to the manner in which the jury pool is drawn to how it may be dispersed if different courts exist in the county to appropriate voir dire to whether a juror is struck for cause to the propriety of  any peremptory challenges.

Perhaps due to the myriad choices, litigants argue and courts rule with tentative, fragile determinations.  Indeed, in the seminal case of Batson v. Kentucky, the petitioner brought his peremptory challenge issue under the 6th Amendment but it was decided under the 14th (to great consternation by both Justices Burger and Rehnquist).  The goal of the case was to stop the government from exercising peremptories in such a way as to effectively eliminate minority members of the community from serving as jurors.  Whose right is that?  The defendant's right to a fair cross section of the community (traditionally a 6th Amendment argument, an argument essentially rejected by the Court) or the juror's right to serve (an equal protection 14th Amendment right not to be excluded from the role of citizens)?  In the plurality, Justice Marshall's concurrence was most profound.  He declared that the only way to end racial discrimination in peremptory challenges is to eliminate them entirely.  Can we get to optimal juries by foregoing the peremptory challenge?

Massachusetts' fair cross section-type argument predates and is cited within Batson v. Kentucky, 476 U.S. 79 (1986). Justice Marshall pointed out its ineffectiveness in eradicating bias as it is too easy to deliver a plausible rationale that does not involve race for any peremptory challenge.  Reaffirming the rebuttable presumption of propriety for peremptory challenges, in Commonwealth v. Scott, the Supreme Judicial Court recently averred that because (a) the defendant did not dispute the "race neutral" proffer by the government, (b) the jury could fairly be considered to represent a fair cross section of the community as constructed, and (c) the judge determined there was no pattern of discrimination, the argument would fail.

The ruling reflects the Sisyphean nature of the peremptory challenge argument.  Justice Marshall even predicted that Batson would exacerbate the problem of bias as the "colorblind" era emerged.  In light of Justice Marshall's carefully considered concurrence, perhaps we can even embrace the current Court's reactionary fundamentalism suggesting that words mean only what they meant in the moment they were written even when they were written with an eye to the future, to growth and to revolutionary change.  The right of individual jurors to decide both the law and the facts, to nullify existing law, to demonstrate mercy was, indeed, familiar to the Framers.  It is this right that they so jealously protected for both the accused and for the greater community.

In our great democracy, there is a place for jury nullification and for permitting the jury to limit the penalties ascribed by the legislature if the people - otherwise utterly divorced from the criminal justice system - find that their representatives have been too harsh.  We must take pains to acknowledge that we are incarcerating too many people, that we are disproportionately incarcerating young African American men, and too often with white juries, that we tend to punish the poor by ensuring their poverty with convictions, and too often with wealthier juries, that the current economic climate distances the poor from the middle and upper classes in increasingly uncomfortable ways, that the language of the Magna Carta regarding judgment of peers was exactly that - nobles judging nobles - that it is time to address both the conscious and unconscious bias in the jury selection process when we review under fair cross section, equal protection, due process and (in Massachusetts) "judgment of peers".  It is time to reconsider representational juries and proportionality in the venire and greater voir dire to eliminate jurors for cause.  And, in exchange we can eliminate peremptory challenges in order to effect fairer trials.

Hardly radical, John Adams himself declared that jurors should reach their verdict as of conscience even if it is in opposition to the direction of the court.  He had great company in this belief.  But, how do we get this jury of conscience, this jury of independence, this jury so willing to stand up for justice that they are willing to sit down to deliberate?   Is it possible that what the Constitution intends and what fairness dictates is really a jury that reflects the community by age, by politics, by race, by ethnicity, by religion, by gender and by socioeconomic status?  Perhaps in places like Massachusetts that provides for judgment by peers the requirement extends to oversample the community as to the defendant's peers, whoever they may be?  If the jury trial was so important that it is included in not only the body of the Constitution, but again in an amendment passed soon after, weren't they trying to tell us something?

As political parties gallop into the homestretch of a tight and often bewildering campaign season, they have so finely tuned their get-out-the-vote effort that they have developed microtargeting algorithms including everything from party affiliation to installation of home swimming pools to magazine subscriptions in order to identify and reach out to potential votes.  Initially, all elections for federal officials was through an indirect vote; for president this is still true.  The drafters of the Constitution, however, directly involved the citizenry in perhaps its most important role, as jurors in judgment of a peer and as a check on all three branches of government.

Given that jury service is therefore more important than the vote, has the time come to use this technology and establish better and more diverse jury pools, improve the jury questionnaire, increase voir dire process, strike only for cause (perhaps with proportionality restrictions), encourage deliberation and debate by allowing the jury to know the potential penalty and provide them with the opportunity to craft law?

Courts have created winding roads that meander without really leading anywhere.  The right of a jury trial is the defendant's.  The right of trial by jury is society's.  The intersection of these rights has the potential to transform democracy in new and brilliant ways by reclaiming what the Framers intended - people freely participating in their own government. 

As we prepare to exercise our vote next week, we might take just a moment to remember that all of us have a duty of citizenry that is not dependent upon advertisements and slogans; it is not dependent on the party in power or the stagnation of our elected officials.  Our duty of citizenry can never be more effectively demonstrated than in jury trials.  To ensure that government of the people, by the people, for the people shall not perish from this Earth, we must seek engagement in all aspects of the configuration of the jury for criminal trials.   If taxation without representation roused our forbears, incarceration without representation should be an alarm clock for us.


 

Not To Be (Or, Why it is Nobler to Ask the Correct Question Than Suffer Outrageous Fortune)

Don’t search for the answers, which could not be given to you now, because you would not be able to live them. And the point is to live everything. Live the questions now. Perhaps then, someday far in the future, you will gradually, without even noticing it, live your way into the answer.  - Rainer Maria Rilke

Rilke begged the young poet (in all of us) to love questions as if they were locked rooms or books in a foreign language.  But, to love questions and open questions and decipher questions, we must ask questions.  Too often, we orient ourselves toward the staid and familiar without reaching into ourselves first to discover the question that needs to be answered.

After the watershed case of Crawford v. Washington, virtually every document, every statement, every out of court anything emerged as an issue lawyers mistakenly argued necessitated confrontation.  The question of confrontation and that of hearsay evidence are linked but not identical. We have all but forgotten the differences and how to address issues of hearsay outside of the Confrontation Clause. 

The evidentiary problem of hearsay evidence - and why it is generally excluded at trial - is that it presumes four things: (1) that the statement was made, (2) if made, such statement was both voluntary and intended to be factual (3) that the statement was truthful and (4) that the statement was not made mistakenly or in error.  The question of confrontation allows examination and evaluation of of the witness in relation to but also separate from any out of court statement s/he may have made.  Everyone is entitled to the benefit of the hearsay prohibition, but only criminal defendants enjoy the right to confront adverse witnesses under the Sixth Amendment.  In Massachusetts, it is unclear how broad a reach the confrontation clause has as it avers that every "subject" of a crime or offense has the right to meet the witnesses against him "face to face." MA Const. Pt. 1, Art. XII.

The history of the prohibition against hearsay evidence is fascinating; in the 14th Century, hearsay evidence was wholly admissible, then it was admissible only as corroboration, and finally, by the 18th Century deemed too ambiguous for a court of law.   It seems that early rules forced trials to finish in one day; hearsay was admitted as a management tool without regard to its harm.  But, as cross examination emerged as a means of seeking the truth, courts began to frown on out of court statements being used as proof of a crime or offense and trials took on a life of their own, unbound by 24 hour constraints.

Confrontation addresses the defendant's ability to cross examine the witness; outside of any statement, the demeanor, credibility, bias and character all merit evaluation.  But, the concerns about hearsay wonder whether the statement, if made, was intended to be truthful and, in fact, was truthful and not a mistake, regardless of the other attributes or flaws of the declarant.  Independent of the ability to cross examine the witness, courts have a duty to ensure fairness in the proceedings, not to permit any evidence that is not relevant or that is more prejudicial than probative or that will distract or confuse the jury - all hazards of hearsay evidence.


Indeed, hearsay begs to be believed regardless of its truth or the good character of the speaker.  Haunting lamentations in Nicole Brown Simpson's journals detailing her former husband's violence and threats were excluded from his trials as inadmissible hearsay.  Accepting the virtues of the declarant, as painful and as revealing as the journals were, query whether they would have added an element of truth to the trial or whether they would have prejudiced the jury against the defendant.  Courts of law cannot sanction the human desire to convict someone of murder because he is a cad or because his behavior and cruelty caused another devastating emotional distress.  And, so courts have put into place safeguards, including the prohibition against hearsay evidence, to ensure the fairness of trials.

Due to the problems with unsubstantiated out of court declarations, it creates a sea of trouble when hearsay supports the sole reason to deprive liberty.  Yet, relying on an older case and factors it outlined, the Massachusetts Appeals Court recently upheld a probation violation when the only evidence against the accused was an affidavit (arguably recanted in part) and a police report.  Neither witness appeared in court.  The hearing judge found the evidence "reliable" and therefore revoked the defendant's probation.  That revocation imposed a previously suspended sentence on the defendant. This, the Appeals Court declared, was justice.

They did so by relying on Commonwealth v. Durling, a case decided wholly and exclusively on the Fourteenth Amendment right to due process of law.  It announced that probation revocation hearings are not part of criminal proceedings.  It did so by citing to Gagnon v. Scarpelli, which held that a previously sentenced probationer was not entitled to counsel in a hearing focused on revocation of probation as such a hearing is not a critical stage of criminal proceedings. The question in that case asked whether and under what conditions the federal guarantee to due process mandated a hearing before probation could be revoked.

Yet, without any analysis of this ruling and without reference to any part of the Massachusetts Constitution, probation revocation hearings were removed from the realm of criminal proceedings.  Not only has this unusual decision never been challenged, but it is accepted without question.  Rules developed expounding its erroneous presumption so that probationers in Massachusetts have been denuded of their constitutional rights, privileges and immunities...all based on a misunderstanding of the question.

Massachusetts District Court Rules for Probation Violations Rule 6 allows hearsay at probation revocation hearings.  It explains that a revocation of probation based upon hearsay evidence may only rely upon "trustworthy hearsay" and where the probation officer has good cause for proceeding without a witness with personal knowledge.  Putting aside that neither of those requirements was met in Commonwealth v. Henderson, Massachusetts Appeals Court Docket No. 11-P-1302 (October 19, 2012), the rule itself harkens back to the long disavowed approach which prompted Raleigh's plea to being forth Lord Cobham and directly violates the Massachusetts Constitution which guarantees the subject of a crime or offense the opportunity to confront the witnesses against him face to face before being deprived of his liberty. MA. Const. Pt. 1, Art. XII.

This hearsay devolution is akin to the game of telephone where the first message gets garbled along the way.  In Gagnon v. Scarpelli, questions arose as to whether due process of law required any hearing as to probation revocation and, if so, whether the probationer would be entitled to counsel.  It does not discuss hearsay or confrontation; it certainly does not discuss them for a probationer facing revocation when his sole sentence is probation (rather than a previously suspended term).  Prohibition against hearsay predates the American colonies and it has long been applied to both civil and criminal matters.  Somehow, the message that filtered through to Massachusetts was that probation revocation hearings were not criminal proceedings at all; ergo they are not subject to constitutional principles or accepted rules of evidence. No one has questioned why and how hearsay can send someone to jail simply because s/he is on probation, an illogical determination and one that demands consideration.

Art. XII pertains to all "subjects"; its separate clauses, each beginning with the word "and", call into question any limitation of the protections it guarantees.  Its provisions apply to any offense; this encompasses those offenses that might impact probationary status.  The question is not simply the process due to a probationer, i.e. whether the Fourteenth Amendment requires a hearing and if so what form of hearing.  Review of a probation revocation hearing under Art. XII questions whether the state can act to deprive a subject of liberty without the ability to confront witnesses face to face and present all proofs that may be favorable.  The rule permitting hearsay, whether "reliable and trustworthy" or not, violates the mandate of Art. XII and must be challenged on that basis, not the federal constitutional principle of due process.

It is impossible, as Rule 6 permits, for a judge to ascertain the reliability or trustworthiness of an out of court statement.  Further, the problems with hearsay testimony generally prevent it from being used as the foundation for incarceration since there is no basis by which anyone can determine whether the statement was made in jest, in error or under conditions that call voluntariness into question.  But, beyond that, as Justice Marshall determined, laws and rules that fail to comply with the dictates of the Constitution are invalid.

It is not the job of lawyers to accept, willingly what appears to be or not to be.  To live the questions, we must ask the right questions.  Without them, we can never find the answers no matter how long we search. 

Control Freak

Thinking about controlling precedent brings to mind a sensational case that occurred in Massachusetts well over a decade ago in which a young au pair was accused of murdering an infant in her care.  Her defense team gambled: murder or acquittal.  But, the government sought a lesser included offense of manslaughter jury instruction, a request denied by the trial judge.  Given the choice, the jury convicted the girl of murder.  Able defense counsel moved to have the verdict reduced to manslaughter, which occurred, and the highest court in the state upheld the ruling.   

That famous case birthed the rule that, regardless of which party moves for a lesser included offense jury instruction, if the evidence exists to provide it, the trial court is obliged to provide it.  Indeed, when such scenarios occur, it creates reversible error - the rule is clearly elucidated and there is a serious due process consideration at bar.

Putting aside the science now known about the accusation of "shaken baby syndrome" which calls any verdict against the au pair - and many others similarly accused - into question, the Supreme Judicial Court stated, affirmatively, not only that the lesser included offense jury instruction rule decided in many earlier cases, but that the rule had never been limited to requests by the defendant.  Defense strategy was irrelevant if the government requested the instruction.  The case is controlling in theory alone, however.  Few litigants engender the sympathy that the young au pair had; and courts rarely implement the rule, an unfortunately common phenomenon.

Curiously, not only do courts occasionally fail to enforce their own rules, but sometimes courts state that one case or another "controls"  when the issue is not controlling.  For example, in a matter averring the overly suggestive nature of a police identification procedure, there are two different, and independent, aspects to review': (1) was the decision to conduct the procedure an acceptable one under the circumstances? And, (2) did the police take actions that made the procedure overly suggestive?

The defendant can concede on (1) but argue (2) that the actions taken by the officers turned an already suggestive identification process into one that was so highly suggestive that it violated due process of law.  Despite that, the court may aver that because the elements of (1) suffice, the improper procedure bears no meritorious discussion.  And, the case that outlines the rule in (1) "controls" when, in truth, the case is completely irrelevant to the argument actually made by the defendant. If notice is part of due process of law, then should not defendants anticipate that courts will uphold their own precedent and rule upon the questions presented as controlling law? 

A case titled Escobedo v. Illinois announced that suspects in criminal cases are entitled to counsel before speaking to police officers. The better known version, Miranda v. Arizona distorted the earlier decision.  Justice Goldberg, a Kennedy appointee, authored Escobedo in 1964.  Just over one year later, President Johnson persuaded him to leave the Court and become an Ambassador to the United Nations.  Justice Fortas replaced him.  In order to secure a majority in Miranda, the Court radically changed its position.  Escobedo was decided squarely on Sixth Amendment grounds; Miranda never mentions the right to counsel; it only discusses compelling a defendant to self incriminate under the Fifth Amendment.  

The Court shifted from the right to counsel to the right not to be compelled to self incriminate (a far less protected right - and one less moored in jurisprudence), and the changes to the configuration of the Court (and subsequently to defendants' rights) almost immediately after Miranda had far reaching consequences.  Shortly after the Miranda decision, Justice Fortas left, Chief Justice Warren resigned and they were replaced by Justices Blackmun and Burger respectively.  The questionable basis for the Miranda decision proved its undoing as the Court pulled further and further toward the position that not only does it love confessions, but that it will presume the validity of confessions.  It began to question whether - regardless of the affirmative declaration in Miranda that police must inform suspects in custody of their right to remain silent (and to counsel) - there is a set meaning of the term "custody" and whether a bare minimal recitation satisfies the adequacy of the warning.

Escobedo is the better reasoned and more useful of the two decisions: it made it clear that those suspected of crimes and targeted by police for interrogation are entitled to counsel under the Sixth Amendment.  While it has never been overturned, it has been overshadowed by the bizarre Fifth Amendment curveball of Miranda which is impossible to control: it is difficult to understand where it comes from, where it is going and what exactly it means or what rights it seeks to protect.

Yet, lawyers mistakenly continue to argue for "rights" under Miranda and continue to get blind-sided by courts that genuinely want to uphold convictions.  Courts are comprised of judges - who are human.  This means they harbor biases, fears, concerns about perception by the public, and ignorance of some procedures that occur in investigations.  That is not because they are bad or unwilling to enforce the law or even that they are somehow unaware of the concept of an independent judiciary.  It simply means that they are flawed human beings like the rest of us.

It is, therefore, the burden of the advocate to press for upholding rulings and precedent beneficial not only to the client, but to justice, as a mirror of truth in a fearless and forceful manner.  Further, it is up to counsel to advocate for change when change is appropriate whether through social science research or scientific proof demonstrating our fallibility in the past.

The short judicial career of Justice Goldberg gave us the monumental decisions of Escobedo explaining the breadth and purpose of the right to counsel and Griswold where he argued (in concurrence) that the right to privacy was a right retained by the people without limitation by governmental interference and his forceful dissent in denying a petition for certiorari on the death penalty in Rudolph v. Alabama which would start a trend in Judicial commentary, particularly in regard to capital punishment.  

In an ironic twist, Justice Goldberg embraced the notion of lifetime tenure and an independent judiciary, accepting the freedom to craft thoughtful, meaningful interpretations of our shared Constitution and yet his tenure was one of the shortest of any on the Court.  Not always of precedential value, his decisions compel another look as the Court begins its new term because they challenge the meaning of rights and responsibilities and citizenship in a diverse nation.

Before he was elected, our current president alluded - in one of his most powerful speeches - to our Constitution and its meaning as he discussed race in America.  While we often refer to the great text, "We, the People" (forgetting that the original language listed the various colonies by name in a far more cumbersome sentence that would hardly fit on a commemorative coffee mug) the candidate referred to the idea that from our inception, this nation knew it was imperfect, knew it would struggle to become better and actually strived to become better than it began.  While "we, the people" has gravitas - the goal to form a more perfect union has much more meaning.

Working on a more perfect union necessarily dispels the idea that at a time in our past we were more perfect.  The truth is that we never were but always seek to become so as evidenced in another speech in a different time when American morale had plunged to fearful depths.  As we perfect the union, we must learn from and take from the past ideas and visions that will urge us forward.  Many of those concepts live not only in great speeches but in judicial opinions, concurrences, and dissents.  

Part of the practice of criminal lawyers is to bring forth the fearless decisions, the interesting ones that ask us to look through the same text and see the world in a new way.  Discover what precedent exists and move toward a more illuminated vision of what we can be - together - take control.