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.