Discovering the Root and Legacy of Brady v. Maryland

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Counsel for the Indigent: An Unfunded Mandate

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

An Uncertain Remedy: The Loss of the Speedy Trial Right

A speedy trial seems like a reasonable parameter for a government of the people to provide.  Indeed, it is, universally in this country, a Constitutional guarantee.  But as it turns out, there is a tiered rights system and a speedy trial is - on the one hand - important enough to be a fundamental right - but on the other - not so important that the government must abide the practice. 

The history suggests that as far back as the 12th Century, there was a notion of a speedy trial.  Apparently, people would be charged with an offense but the communication system, being Medieval, was inefficient in rendering the information to the King.  Judges would visit towns in order to mete out justice; each town would be visited once a year or so.  By the 17th Century, a renewed interest in the speedy trial notion suggested that, really it was a means of prohibiting prolonged detentions without a trial.  This is different from, but connected to the notion of habeas corpus which is, in essence, a guarantee that a prisoner held without formal charge have the right to bail or release.

Both of these concepts made their way into constitutional parlance.  But neither has the gravitas of, for example, the right to be free from unreasonable searches and seizures or the right, for that matter, to own a gun.  A recent Massachusetts case ruled, specifically under Art. 11 of part one of the Massachusetts Constitution, that if the Commonwealth charges an individual by a Criminal Complaint and then dismisses the Complaint but later indicts, the initial charging document starts the speedy trial clock (so far, so good)...BUT despite the presumed prejudice of a lengthy delay, the SJC then employed the framework established by the Supreme Court for 6th Amendment jurisprudence to determine that there was no actual prejudice to Mr. Butler caused by the delay.  Commonwealth v. Butler can only be described as an intellectually dishonest opinion that seeks to destroy a valuable portion of the Massachusetts Constitution.

On the one hand, the Supreme Judicial Court noted - in keeping the clock running without resetting it upon the indictment - that the idea of a speedy trial is a societal, not an individual right.  That is, society has the right for its prosecutors to perform efficiently and without undue delay.  Therefore, they are under some pressure to finish what they start when they begin the criminal process.  Contrarily, it is not as much of an individual right because, even though years of time can be attributed to the government in delay, the defendant could not prove that he was actually prejudiced...which has never been a part of the Massachusetts jurisprudence on this issue.

Indeed, earlier decisional law suggests that incarceration on another offense does not reduce the accused’s right to a speedy trial. Commonwealth v.McGrath, 348 Mass. 748 (1965) was decided exclusively under Art. 11 and yet was not even mentioned in Mr. Butler's recent case. In McGrath, the defendant was convicted in federal court and was serving a federal sentence when a Massachusetts County issued indictments against him on unrelated charges.  He petitioned for habeas corpus and the federal government was willing to release him from exclusive custody if they were reimbursed by the county.  The county refused to release the funds and Mr. McGrath moved for a dismissal pursuant to his speedy trial rights.  The Supreme Judicial Court stated,

Were the defendant serving a sentence in a correctional institution in this Commonwealth he would, both under art. 11 and by statute (see G.L. c. 277, § 72A, inserted by St.1963, c. 486), have the right, if he requested it, to a prompt trial on the pending indictments. But a different problem is presented where, as here, the defendant is serving a sentence in a Federal prison. In such a situation the Commonwealth has no right to secure the presence of the defendant before our courts.

Commonwealth v. McGrath, 348 Mass. at  750 (footnote omitted).

Mr. Butler was incarcerated in a Massachusetts prison: everything was in the control of the Commonwealth.  He asserted his speedy trial right to a prompt trial.  But, unlike McGrath, where the Court held: "that the right to a speedy trial contemplates that the Commonwealth will take reasonable action to prevent undue delay in bringing a defendant to trial, even though some expense may be involved... The Commonwealth must, within a reasonable time, either secure the defendant's presence for trial or dismiss the indictments." Id. at 752, Mr. Butler's right to a speedy trial - although presumptively prejudicial in that the delays were the fault of the Commonwealth - were irrelevant to justice and ordered liberty.

Not only did the SJC fail to uphold (or even cite) its own precedent, it took a convoluted path by analyzing under Barker v. Wingo, 407 U.S. 514 (1972) as if the Sixth Amendment right to a speedy trial and the Art. 11 right to a speedy trial is the same right.  The problem is, it's not.  The Sixth Amendment guarantees, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial..." But, Art. 11 avers: 

Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.

The notion of a "speedy and public trial" may be understandably amorphous, thereby requiring the four-part Barker v. Wingo analysis to decide whether an individual had been denied his right to a speedy trial.  In that case, the Court came up with criteria to assess whether the delay between accusation and trial violated the Sixth Amendment; the factors include the length of the delay, the reasons for the delay, the defendant’s assertion of his right to speedy trial and the prejudice to the defendant.  While a "speedy trial" is blurry, Art. 11 could not be any more clear: the government must be responsive to its own laws for the benefit of society and cannot, at the expense of any individual, betray the laws and rules it devised.  It encompasses both a societal right and an individual right to be free from an arbitrary and capricious form of government.  By denying Reginald Butler his asserted right to a speedy trial, the SJC just denied the people of Massachusetts the right to a responsive and efficient prosecutorial arm of government and infringed upon the access to courts so dear to the notion of citizenship, freedom and self-governance.

Not only does the recent Butler decision fly in the face of the language of the Massachusetts Constitution and binding precedent in this Commonwealth, it also runs afoul of Supreme Court decisional law.  In Doggett v. United States, 505 U.S. 647 (1992), the defendant was unable to point to specific facts illustrating that the delay harmed his ability to defend himself adequately. Id.  at 655.  “[W]e generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify.  While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, it is part of the mix of relevant facts, and its importance increases with the length of delay.” Doggett, 505 U.S. at 655-656 (internal citation omitted).  The indictments against Mr. Doggett were dismissed in violation of his speedy trial rights when the government’s negligence caused delay in excess of that which normally would require judicial investigation and the defendant had not acquiesced to the delay.  Sounds a lot like Mr. Butler.

In the case of Reginald Butler, he was incarcerated on unrelated charges in a Massachusetts state prison when a criminal Complaint issued triggering a warrant to be lodged at the correctional institution in which he was housed.   However, the court personnel failed to comply with a law requiring that the warrant enter into the warrant management system (read: government negligence).  Knowing about the warrant and the Complaint, when no action occurred for two years, Mr. Butler signed a form requesting a speedy trial...which while received by the court was never docketed and no action was taken (read: assertion of right combined with government negligence).  Mysteriously, within a year of the speedy trial request, the prison began reporting that there were no outstanding charges against Mr. Butler (read: unclear governmental action - possible negligence, possible detrimental reliance).  He was released several years later.  Less than a year after his release, he was arrested on the initial warrant, but those charges were dismissed by the Commonwealth for failing to prosecute (victim could not be located).

A year later, the government was able to find its key witness and therefore presented evidence before a grand jury and indicted Mr. Butler on the very same charges which were dismissed in the lower court (read: government exuberance following extreme negligence).  Mr. Butler was held in lieu of bail and tried several years later.  Despite arguing to dismiss the indictment for failing to abide his right to a speedy trial, Mr. Butler was convicted after a jury trial.  Putting aside some procedural difficulties, the real issue was whether the speedy trial clause wither of Art. 11 or the 6th Amendment - or both - was violated when more than 10 years of time, all attributable to the government passed before trial.

In a bright note, the SJC affirmed that the speedy trial right clock begins ticking at the first formal accusation, whether by Complaint or Indictment.  The clock will not reset, it simply keeps ticking.  While bright, the note fades quickly because, despite the different language of Art. 11 and the harm to society by the delays, the harm to the defendant by the delays (even when he asserts his right to a speedy trial), despite the holding in Doggett, he will still have to prove actual prejudice under the Barker criteria.  This is non-sensical and intellectually dishonest. 

Mr. Butler's situation is more Doggett than Doggett's.  In Doggett, the defendant was unaware of the outstanding indictment and failed to assert any rights related to it; he was not incarcerated but living openly under his own name for years before the government "discovered" him and arrested him on the old warrant.  Mr. Butler is, in many ways, more sympathetic because the government had no excuse but to find him since they housed, clothed and fed him, provided him with the paperwork to assert his rights, which he did, and then ignored his very existence until such time as was convenient to prosecute...that is shortly after he was released from custody. 

It is insulting to affirm a right by denying that very same right.  It is impossible to prove a negative; thus the only way Mr. Butler could prove actual prejudice would be if the prejudice favored his position in the form of insufficient evidence to convict thereby eliminating the appeal due to a speedy trial right violation.  Under the wording of the Massachusetts Constitution, Pt. 1, Art. 11, the government shall not infringe upon any individual's right to obtain free and fair justice.  It has nothing to do specifically with a criminal trial and therefore this decision linking it to an analysis under the Sixth Amendment which is identifiably directed to the accused in criminal cases sets a dangerous and untenable precedent.  

The frame of the case is this: due to negligence and actions by the government upon which Mr. Butler reasonably relied to his detriment, he was denied his ability to obtain his rights and his free access to justice conformably to the laws.  Forget whether or not he was incarcerated.  Forget what the charges were.  Forget whether this was a criminal trial at all.  Art. 11 was rendered virtually meaningless in its own language by this decision that never once cites its words.  Query whether, in this anniversary year of Gideon v. Wainwright, if he had the ability to purchase his freedom by hiring an attorney to assert his rights throughout the decade in which the government failed to act, Art. 11 might have provided better protection.  And if so, the danger in that analysis for all of us.

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.