Collateral Damage - Unintended Consequences

Collateral consequences to criminal convictions range from the immediate loss of liberty to future complications not imagined at the time of trial.  These range from possible deportation  to enhanced sentences for later crimes and a considerable amount in between.  Public housing agencies have rules and regulations regarding prior convictions: in Lowell Housing Authority v.Melendez, the Supreme Judicial Court ruled that a violent offense which occurred within one mile from the defendant’s home in a public housing complex was close enough to endanger the other tenants of the housing complex to permit the termination of the defendant's lease.  If the property is owned by Housing and Urban Development, entire families may be evicted due to the criminal drug offenses of one member. 

Additionally, driver’s licenses may be suspended and professional licenses revoked.  People with criminal convictions may be barred from creating business contracts with the government; employers may use criminal records to exclude candidates.  Those convicted of crimes may be required to submit their DNA to a national database, many will lose or have limitations on their right to access firearms; some may face civil commitment after the completion of their criminal sentence and some may be required to register as a sex offender which will carry additional restrictions on habitation and employment.  The overall cost to society for crime, punishment and collateral consequences is utterly unknown.  And, new questions arise on a regular basis in regard to the consequences of crimes.  Many of these issues are complex with sympathies and emotional pull for the victim but law and practicality on the side of the offender.

For example, at least one man in Pennsylvania is being sued for the purpose of purchasing his victim’s home.  The allegation is that the victim’s family moved into their home in 2005 at which time the victim was 2.  Their 65 year old neighbor, the defendant, befriended them gaining their trust and the trust of their daughter until such time, when she was 8, when he molested her.  Convicted of the offense, he was ordered to serve less than 2 years of incarceration after which time he moved back into his family home…next door to the victim.  The victim’s family has sued for damages related to the assault but also for what appears to be specific performance of purchasing their home.

The victim’s family’s suit claims that their house is unsaleable due to its proximity to a registered sex offender who is a child molester; yet the family is under duress to move due to the young victim’s trauma of seeing her rapist on a regular basis (although it is unclear why the victim's family did not seek to sell the house before the offender returned home from prison.)  Counsel for the defendant has asked for the court to dismiss that portion of the law suit requiring home purchase as stating a claim for which no relief can be granted…essentially comparing his client to a toxic waste dump.  The defense attorney cited a case where a plaintiff could not collect damages due to inability to sell his home despite living next to a toxic waste dump.

In another case – here in Massachusetts (but it is not unique) – the victim of a rape was impregnated (and, despite rhetoric to the contrary, that fact does not invalidate the crime of rape) and chose to carry the pregnancy to term, keeping the child.  The criminal court judge sought to transfer a portion of the case to Family Court in order to enforce child support payments upon the putative father.  The putative father averred that if he was to be ordered to pay child support payments then he would like to establish a relationship with the child and gain parental rights.  The victim, understandably, wants nothing to do with the father of her baby and has asked that the case not be transferred to the Family Court, but rather that restitution payments be ordered in the amount that would be ordered from Family Court by the Superior Court.  That case is pending in the Supreme Judicial Court under the caption Commonwealth v. Jaime Melendez, SJC-11326.

The victim's argument that the criminal court has no authority to transfer the case to the Family Court is unfounded.  Courts of limited jurisdiction can request such a transfer from the Chief Judge for Administration and Management (CJAM).  Before states will provide services, they require that the mother make every effort to identify the father and then hale the putative father in to pay his portion of child support.  Thus, the transfer seems to be a legitimate and, in many ways, prudent action by the Superior Court judge from a financial, if not emotional standpoint.

In Melendez, it appears that the victim wants it both ways: she wants the child support payments but also that the father be denied all other rights pertaining to the child.  Not only is this an inappropriate criminal sanction, and an almost assured violation of the Eighth Amendment and Art. 26, it is also an impossible restitution order (See, The Charge dated February 4, 2013).  That is, criminal restitution is to pay for damages incident to a crime, not for future contingencies and collateral consequences of that offense.  Even if ordered, criminal courts and probation offices are wholly incapable of enforcing this type of penalty, a function the Family Court conducts on a regular basis.  Not only would any restitution order be subject to the defendant's ability to pay, nothing in a restitution order would prohibit the putative father from taking an active role in the child's life by asserting an action in Family Court.  Clearly the victim’s solution cannot succeed.

But, if (and logically when) the Family Court takes jurisdiction over this case, what are the lifelong ramifications for the victim and her child?  As a single parent, the odds suggest that she will require public funds for everything from child care to educational benefits to housing preferences to supplemental nutritional assistance in addition to whatever contributions may be made by the biological father.  The average cost of raising a child in this country is in the hundreds of thousands of dollars.  When a child is born as a result of rape, does society accept the costs of raising that child because the mother of the child (understandably) does not want the father involved in her life or the life of her child?  Or, does a man convicted of rape gain full rights (and also responsibilities) of parenthood due to the result of his crime?  Does society gain some authority to encourage abortion or adoption over the public cost of raising a child?

Massachusetts has reasonable access to abortion services.  Clearly the victim – for her own reasons which are unassailable and personal to her – chose not to have an abortion.  That is not always a choice.  Indeed, restrictions on abortion would often result in this very outcome which seems, well, wrong.  And, legislative solutions outside of freeing a woman to seek adoption or abortion without any involvement from her rapist cross over the line of constitutionality.

Massachusetts has a "slayer statute" prohibiting anyone charged with murder or manslaughter from taking distributions from the decedent’s estate; anyone convicted would be deemed to have predeceased the victim and therefore ineligible to claim rights of succession (however those found not guilty would be in the same stead as if never accused).  While this legislative response to prevent killers benefiting from their crimes suggests a legislative option for rapists, crafting a law that would de facto deprive a biological parent of parental rights would be impossible to devise within constitutional confines. One that would require payments in child support but deny parental rights is almost unthinkable, even for those convicted of serious offenses. Further, no rational law could aver that rape victims who carry to term will be eligible for all services without regard for the rapist as those kinds of laws are too susceptible to corruption and false claims.  Further, what happens if the male is acquitted? 

Women victims of rape, like all women, should have every option – safe, legal and accessible -  available to them in regard to any resulting pregnancy.  No one takes the idea of abortion any more lightly than carrying a pregnancy to term (oddly, the cost of the abortion fits easily into a criminal restitution argument and would be subject to such an order while child support payments, due to their variability, could not).  

In a twist to the well-intended but ill conceived "victim rights" movement which has distorted and confused the role of the public prosecutor, must a rape victim be informed that her rapist may also be attending soccer games in the future?  Who must provide this information to the victim and when?  With all of the collateral consequences defense attorneys must advise their clients before a guilty plea, is this a collateral consequence about which a prosecutor must advise the victim…even a prosecutor opposed to abortion (or to public funding for children of the indigent)...regarding carrying the pregnancy to term?  Must a prosecutor be in the position of informing a rape victim that she might have lifetime contact with its father or become ineligible for state or federal services?  For, without that knowledge, she cannot make a rational, informed decision whether or not to terminate her pregnancy. 

Query also the child male victim of statutory rape by a woman.  If the offender is impregnated and carries to term, must the victim pay child support?  If not, why not?  Just as a court or legislature could not, within the parameters of the Constitution, prohibit a biological parent's involvement in a child's life by virtue of the fact that he committed a heinous crime, neither could require such an offender to abort a fetus.  Offenders may be guilty of the statutory rape and still choose to carry to term: who pays for the care of that baby?  On the flip side, those who are raped are victims, but who pays for care of the resulting child?  

One strong argument is that the child is innocent and has its "right to life" thereby prohibiting forced abortion for an offender or a victim.  Another, that abortion should be available to the victim or offender along with information about the potential for the male party - offender or victim - to have a lifelong involvement with any resulting child.  As a society, are we prepared for the rapist coordinating schedules for weekend visits?  What about future consequences for the victim in a case of male rape by a woman?  Is the male involved in rape - offender and victim - more like the child molester-toxic waste site comparison, not responsible for the unintended, albeit foreseeable consequences?  

What is the cost of these crimes - these collateral costs that seem far removed and yet are intricately involved with these offenses?  These are not new problems.  Taking responsibility for offspring was often interwoven in the laws of intestacy where the child born out of wedlock was simply not recognized, perhaps the putative father would be required to pay a bond for the child's welfare, but just as easily, the child could become (with its mother) a ward of the state or sold in vendue to the lowest bidder.

In early America, abortion did not carry today's religious taboo, and adoption was widely practiced for out of wedlock pregnancies whether voluntary or not.  Indeed, the idea of the single mother intent on raising her own child - especially one who was the product of a rape - seems relatively new in comparison (undoubtedly it has always been a reality but rape was potentially a capital offense until 1976 and so the father would unlikely be asked for child support payments).   Still, the question remains as to who will pay the cost where the single mother is incapable of supporting herself and her child?  The rapist (or in the case of statutory male rape, the victim)?  The state without any involvement by the rapist (or victim)?  And regardless of cost, can the rapist (or victim) be prohibited from involvement in the child's life if the child is not placed into an adoptive home where parental rights have been surrendered?

A battle is raging in this country that is internally inconsistent and not reflective of reality. It is inconsistent to seek to abolish abortion in all cases and simultaneously argue for personal responsibility for all actions.  That places the woman rape victim in the impossible position of being intertwined with her rapist forever and the male rape victim responsible for the care and upbringing of his offender's child.  Further, reduced availability of state and federal aid will undoubtedly press courts to seek payments from rapists and victims in child support for the offspring of the crime, putting government in the unenviable position of requiring victims of crimes to have lifelong interaction with their assailants.

The pending Melendez case raises important and difficult questions not only for the parties but for society.  Historically, Americans have looked askance at single mothers, particularly those accepting public services.  At the same time, we have tremendous sympathy for rape victims and an inherent sense that women should have total control over their own bodies and destiny.  Is our disdain for delinquent fathers more powerful than our disgust with rapists who want to be involved in their child's life, especially those with the financial means to support the child?  And, in this nation, where our emotions drive our zeal to brand people as criminals and deprive them of dignity and resources otherwise inherent in citizenship, how and where do constitutional principles and protections fit into that charged landscape when a child is involved? 

Leaving the Scene: Protections of the Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
United States Constitution Amendment 4

Over thirty years ago, in Michigan v. Summers ("Summers"), the Supreme Court of the United States decided that it was, in fact, reasonable for the police, when executing a search warrant for contraband, to detain occupants of the house...even if they happened to be leaving - and outside the actual home - when the officers arrived.   (And do check out footnote 20 differentiating between "contraband" and "evidence" where the Court says that there is an open question under Summers if the search warrant is for evidence but not necessarily contraband and then query in this Brave New World where guns in the home are "fundamental" to self-defense where a search warrant for firearms would fall...)

The rationale was that the officers feared for their safety (even though they really didn't) and there was a high likelihood, in a search for drugs, that there would be a mad scramble to destroy the evidence...by the guy who was outside the house and that the occupants could help with the search even though they have a privilege against self-incrimination.  Justice Stewart proved his mettle about knowing things when he sees them by writing a powerful dissent which Justices Brennan and Marshall joined.

His opinion resonates with clarity about the limited exceptions to warrants and probable cause; he explained that the Terry v. Ohio line of cases were designed to be limited in scope and dedicated to the immediate interest of investigating crime and the interview-at-the-border cases, i.e.  United States v. Brignoni-Ponce, were limited to the legitimate government interest of preventing aliens from entering the country.  But in Justice Stewart's mind, they were limited, well defined, and for lack of a better term, reasonable.

In Summers, he explained that the detention of a person for whom the police do not have probable cause to arrest during the duration of a home search has no legitimate basis:

Unlike the law enforcement objectives that justified the police conduct in Terry and the border stop cases, these objectives represented nothing more than the ordinary police interest in discovering evidence of crime and apprehending wrongdoers. And the Fourth and Fourteenth Amendments impose significant restraints upon these traditional police activities, even though the police and the courts may find those restraints unreasonably inconvenient.

Michigan v. Summers, 452 U.S. at 709 (Stewart, J., dissenting).

Correctly, he noted that if the police detain people without probable cause for the purpose of arresting them once they establish probable cause, this is really a trip down the rabbit hole.  Significantly, he pointed out - with fear - that the, "explicit holding of the Court is that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” Id. at 711 (internal quotation marks omitted). 

Recently, the Court decided Bailey v. United States ("Bailey") which took the Summers idea far afield from its roots, about 3/4 of a mile away.  In Bailey, the police watched and followed the defendant leave the premises the authorities were about to search pursuant to a warrant.  They followed him in his car with another man.  Almost a mile away from the site of the search, they pulled the car over, handcuffed both men and told them it was in relation to the execution of a search warrant at the address on Mr. Bailey's driver's license...which the two men admitted to having just left, the location being Mr. Bailey's home...and then, upon learning of the search warrant, Mr. Bailey not only denied that he lived there but that if the police happened to find anything, it would not be his.

Justice Kennedy, writing for the majority, said that Summers identified three law enforcement interests: flight, destruction of evidence, and controlling the scene (note in the dissent that Justice Breyer finds four interests, one of which he concocted out of thin air).  Given those three purposes, a search warrant will only justify the detention if the individual is actually...there... and a mile away was really too far.  The concurring opinion will begin to erode even this reasoning in support of the original Summers decision, hewing closer to the constraints of the Fourth Amendment's purpose: to protect society from intrusive, authoritarian governments.

Provided one accepts the Summers rationale without challenge to its tail chasing on the Fourth Amendment, Justice Scalia wrote a convincing concurrence onto which Justices Kagen and Ginsburg signed.  He explained that Summers delineated a bright line rule applying to seizures of persons within the immediate vicinity of the premises: Mr. Bailey's case facts are outside that bright-line rule and therefore Summers does not apply - at all.  While commenting that it is as simple as that, Justice Scalia then opens a door.

He noted also that the Summers decision was hardly a paragon of clarity because it cited a menu of options to support its deviance from the constitutional requirement of probable cause to arrest.  Justice Scalia declares that the Court should not have been so expansive in its rationale for allowing seizures of individuals without probable cause and so he would substitute the panoply of options to just one: carrying out an unimpeded search (which, let's face it, SHOULD allow for flight even under Summers and calls that whole decision into question - if the party is not present, he is unlikely to interfere with the police work).

In fact, Justice Scalia, more than 30 years after Michigan v. Summers, seems to agree in principle with the dissent in that case - which is kind of nice because the dissent was right.  Crime investigation cannot support a detention without probable cause.  Indeed, practitioners should note this tiny but powerful paragraph in the concurring opinion of Bailey in order to rein in the far reaches of long, drawn out Terry stops and other detentions facilitated without probable cause.

Justice Breyer's incomprehensible dissent joined by Justices Thomas and Alito evidences the utter disdain he holds for drug crimes (recall that Justice Breyer is a lead author of the United States Sentencing Guidelines which punishes drug crimes in profound ways that have crippled the nation and destroyed lives).  He links the Summers case to Mr. Bailey's because in both cases a search warrant justified the detention which is a lot like drinking at noon because it is 5:00 somewhere.  And, in Mr. Bailey's case, the police "permitted the occupants" to leave their own home (although it is fair to say that Americans believe leaving one's home is an essential fundamental right) and then followed them for good reason (not probable cause to arrest, mind you, but good - yet oddly undefined - reason) before they arrested him without probable cause to believe he had committed a crime.  Well, when he puts it that way, of course it makes sense to arrest these men driving legally on a public street.

Justice Breyer goes on to say that the risk of flight, destruction of evidence, and an exaggeration worth mentioning that was nowhere stated in Summers, "harm caused by those inside the house shooting at police or passersby" (how this is a reason to detain the people not inside the house and therefore not shooting at the police or passersby is unanswered...and why shooting a gun at other people would not in and of itself establish probable cause to arrest is also a mystery) would establish sufficient basis to detain people leaving a multi-unit dwelling BEFORE the police arrive to execute a search warrant the targets presumably do not know was obtained.  In other words, when it comes to detaining people, the Fourth Amendment has essentially no application for Justice Breyer and his friends Justices Thomas and Alito...at least not for drug cases... 

Query if a banker were leaving the penthouse in advance of the police executing a warrant, whether these three Justices would jump back in line and, asserting footnote 20 from Summers, declare that the warrant was for "evidence only" and not contraband therefore Summers had no application.  But that is a fantasy because the government has explained that punishing bankers is just too hard so they are not going to do it.  Because, if it is hard work, federal prosecutors want nothing to do with it.  Drug cases - blessedly - are easy which is why there are so many of them even though the effects of white collar crime are far greater on society and just one prosecution would have a great impact.

Bringing this home, Massachusetts addressed the Summers issue in Commonwealth v. Catanzaro where the Supreme Judicial Court ruled that police officers with a search warrant specifically indicating the authority to search "any person present" who detained the defendant and his girlfriend outside her home acted reasonably under both the United States and Massachusetts Constitutions.  However, Bailey - and specifically Justice Scalia's concurrence - calls the SJC's ruling in Commonwealth v. Charros into question.  In Charros, similar to Bailey, the SJC found that the Summers rule did not apply to detaining husband and wife co-defendants close to a mile from the site of the execution of the search warrant.  They summarily tossed the conviction of the wife on that reasoning.  

But, the husband's  detention and arrest were upheld because the information establishing probable cause to search the apartment provided in the affidavit for the search warrant concurrently satisfied the probable cause to arrest him for narcotics violations.  Query whether, if this were true, that the police may be required in such circumstances to obtain an arrest warrant as well - or if not, then perhaps a jury instruction along the lines of Commonwealth v. DiGiambattista that the SJC has voiced a preference for prophylactic and cautionary police procedures.  Either way, applications for warrants and affidavits in support must now be reviewed with extra caution to ensure that probable cause has been met for purpose of arrest prior to the initiation of a search.

The Court's decision in Bailey was the right one but it did not go far enough.  Justice Scalia's interesting concurrent provides much food for thought to discerning practitioners since it declares that the only reason to justify detention of occupants would be to facilitate the search - which is just as easily accomplished without their presence, challenging the framework, reasoning and result of Summers.

The definition of a bailey is a fortified wall; for this reason London's criminal court has affectionately been called Old Bailey for the nearby castle-like wall.  The Fourth Amendment must provide that bulwark: providing freedom from unreasonable searches and seizures of our persons, houses, papers and effects.
 
 
 

Tyranny and Musings on the Massacre on King Street

On a chilly day in March, 243 years ago, shots fired out on a Boston street; people were killed and wounded and history changed course.  As with all history that takes on mythological proportions, the Boston Massacre, as it would come to be known, carries drama.  The specific facts are still murky - did a sentry chide a child who reported an overdue bill; did a victim of the events provoke the violence; did Preston say "fire" or "don't fire"?  But the basic premise remains the same: British soldiers fired upon Boston civilians - John Adams mounted a mighty defense; the lead defendant was acquitted of all charges and the two men convicted received reduced sentences.  The event either sparked, or had little to do with, the Revolution.  But it resonates in history as a pivotal moment; remarkably many of those colonial discussions permeate our national ones centuries later.

First - taxes: a fight still being waged.  The initial tax on the Colonists occurred years before, the Sugar Act.  Colonists objected on economic grounds more than principle.  By the time of the Townshend Acts, however, a legal argument emerged; rather than the money, it was the fact that the Crown taxed the Colonists when the Colonists had no say in the matter, a violation of the Bill of Rights of 1689.  Put aside that the purpose of the Townshend Acts was to provide funding for judges and governors in order to be free from colonial rule - it was an act of tyranny.

To quell the uproar, some of the taxes were repealed and soldiers were sent to calm the unrest.  But distant government being out of touch with "Main Street", the plan backfired and caused even more agitation.  Soldiers were to be stationed throughout the colonies, but somehow they all landed in Boston and stayed.  Then as now, Boston suffered from a surfeit of housing so the men were quartered in private homes and public buildings.  They needed more money than their meager wages would abide - so many worked second jobs better left to decent local folk scrounging for work.  And, there is a claim that they did not all pay their bills on time.  Despite the fact that they partook in all manner of bustling city life in a port city full of amenities of the day, many were heard to disparage their hosts to the point of wanting to kill them and just waiting for the opportunity to shoot.  In short, these British Regulars were "takers"- ungrateful, job stealing, takers.  Locals cared neither for their presence nor the taxation without representation that spurred their arrival. 

Second - trial by jury: encompassing rights still deemed sacred and yet unclear.  The trials took place in Boston, but none of the jurors was a Bostonian.  Scuttlebutt from Captain Preston's trial was that the jury was packed for the defendant.  For those who question whether jury packing for defendants (rather than the government) could occur in modern America, think of almost every police officer accused of brutality and how many are acquitted after trial.  The flip side of that concept is the refusal of the court system to provide information to jurors about the possible consequences of a guilty verdict and to negate the time honored right of jury nullification.  Defense arguments in 1770 allowed for it; in 2013, people are arrested for spreading the information and jurors are dismissed for espousing the idea (and courts will do anything to pretend that this was not the reason for dismissal.)

Third - rules of evidence: questions remain hotly litigated today as to admissible hearsay and confrontation rights.  A witness was permitted to retell the "dying declaration" of Mr. Carr, a fatally wounded man who averred that the soldier who killed him must have fired in self-defense.  Mr. Carr was Irish and had had many run-ins with British soldiers in his homeland and noted that they all would have fired their weapons earlier than did those in King Street.  In other words, the British Regulars were eager to shoot - at least eager to shoot the Irish - and those in Boston held back...until they fired.  Although his testimony was very helpful to John Adams' client, Adams sought to blame the victims and play on embedded prejudices: the mob was comprised of such rabble as "teagues" and "negroes and mulattos" and "jack tarrs" causing problems for respectable Bostonians and the Englishmen who served to keep the peace. But, there is not a chance that this "dying declaration" would be admissible today: the statement sought to get into the head of the defendant, it did not add to the factual construction of the case, and it benefited the man on trial.  It would be excluded as hearsay (unless it would help convict the defendant in which case it would be okay).

Fourth - burden of proof and affirmative defenses: the trial was the first to declare "proof beyond a reasonable doubt"; the defense of self-defense is equivalent to the standard used today.  In regard to self-defense, Adams argued that even if one of the defendants averred that he hated the locals and would kill any of them for any reason, if he were attacked, that statement could not be used to support the government's case against him.  Today, several states, including Massachusetts, have turned that truth on its head: if the defendant seeks to demonstrate that the victim was the first aggressor, the government can now submit "prior bad acts" to illustrate that the defendant was the first aggressor in direct opposition to the law in tyrannical, colonial times.

Fifth - glorification for historical purposes: take advantage of the situation to prove a point later in time.  The incident on King Street became the Bloody Massacre on King Street and then finally the Boston Massacre as time crept closer to the events of 1776.  Before the acquittals and reduced sentences, the 5 mortally wounded men, including one former slave and one Catholic, would be laid to rest in a common Patriot grave at the Granary; they would come to be known as the first to die for their country in a war that did not yet exist, lest we forget.  After the emotion of the events faded, the anniversary would be observed.  Every angle is still exalted today from the patriotism of the African American Crispus Attucks to the selfless grace of John Adams defending the British soldiers to the compassion of Americans in granting the benefit of clergy to such brutes to the perils of tyrannical taxation on an unwilling public - all have a home in the Boston Massacre. And, as we all know  glorification of disconnected events continues today.

The legacy is often embellished, but it is fair and true to say that the roots of much of the Bill of Rights was born in Boston in 1770.  The First Amendment right to assemble might have some foundation in the events where a motley mob gathered to confront a government official for chiding or harming a young boy.  In contrast to the modern interpretation of the Second Amendment discussing self-defense and "fundamental rights" of gun ownership, here is how John Hancock explained a well-regulated militia on the fourth anniversary of the events:

A well-disciplined militia is a safe, an honorable guard to a community like this, whose inhabitants are by nature brave, and are laudably tenacious of that freedom in which they were born. From a well-regulated militia we have nothing to fear; their interest is the same with that of the State. When a country is invaded, the militia are ready to appear in its defense; they march into the field with that fortitude which a consciousness of the justice of their cause inspires; they do not jeopardy their lives for a master who considers them only as the instruments of his ambition, and whom they regard only as the daily dispenser of the scanty pittance of bread and water. No; they fight for their houses, their lands, for their wives, their children; for all who claim the tenderest names, and are held dearest in their hearts; they fight pro aris et focis, for their liberty, and for themselves, and for their God. And let it not offend if I say that no militia ever appeared in more flourishing condition than that of this province now cloth; and pardon me if I say, of this town in particular.

      The direct connection to the Third Amendment cannot be overstated: the soldiers were housed in private homes.  Had this not been the law, the "massacre" would never have occurred as there would have been a distant barracks and less opportunity for interaction between the military police force and the citizenry.  The Fifth Amendment requires a grand jury for indictments and due process of law; the charged soldiers faced indictments that had been hastily written by the Attorney General (who would soon step down, refusing to prosecute the men) and the pleas for delay to allow the fervor to abate fell on deaf ears.  Almost all of the provisions of the Sixth Amendment make an appearance:  speedy and public trial, impartial jury, confrontation and the right to counsel.  The Eighth Amendment, too, comes into play as those convicted received the benefit of clergy rather than the gallows; it would have been cruel or unusual to hang men for doing their jobs and, very likely acting in self-defense.

Both the pride and the prejudice of American life made their way into the events of March 5, 1770.  The legacy is more than just one of propaganda and a media campaign turning an unfortunate event into a massacre into a trial into a myth.  There is no question that constitutional issues related to taxation have punctuated the history of this nation from the assumption of the debt at the initiation of the country to the challenged income tax during the Civil War to the ratification of the 16th Amendment to the ruling on the Affordable Care Act and discussions - or lack thereof - in Congress today regarding taxes.  The difference today is that while there may not be very good representation, there is direct representation in both national and state governments.  While that representation exists on paper, the reality of it is in jeopardy.  And instead of working to ensure the protection of the franchise, Americans are making nonsensical arguments about present day tyranny for taxes to pay for wars and other programs which they supported but failed to fund.  The entire historical argument is lost.

Stereotypes and racial prejudice is still on display in trials.  Concerns about the innocent being convicted is even more true today than it was in our colonial past.  Rights of confrontation and concepts of hearsay exceptions are still debated (in 1770, the dying declaration hearsay exception was introduced to assist the defendant, not the prosecution: if it is admitted today, it is solely used to convict rather than exonerate, despite the protections of the Confrontation Clause).  The affirmative defense of self-defense in many jurisdictions now permits prior bad acts of the victim and, if so admitted, then also prior bad acts of the defendant to demonstrate who might have been the first aggressor, but as the argument on behalf of the British soldiers went, their prior prejudices, including statements that they would take any opportunity to shoot the local population, could NOT be invoked against them to deflect from self-defense. Although the death penalty was widely available, the work-arounds were also more prevalent as the benefit of clergy is no longer a viable option.  And, it is fair to say that across America when groups or "mobs" assemble, there is still a possibility that the authorities may shoot and kill one or more of the group.

The events of the Boston Massacre and their ramifications are significant to history; but the way they are presently understood resembles a game of telephone.  The fight for freedom is ongoing not only to protect inherent rights, but also to prevent arbitrary and capricious laws.  That is the part we have lost in the translation.  Recalling that the purpose of the Townshend Acts - albeit through taxation - was to provide MORE, not less, liberty to colonists for self-rule.  By then, the "constitutional question" of taxation without representation had taken such a strong hold that the intent of the law lost to the procedure for imposing it.

Where individual liberties clash against the imposition of authority, the more things change, the more they stay the same.