Our Republic's Long Tale Continues

“Your tale is of the longest," observed Monks, moving restlessly in his chair.  “It is a true tale of grief and trial, and sorrow, young man," returned Mr. Brownlow, "and such tales usually are; if it were one of unmixed joy and happiness, it would be very brief.”

― Charles Dickens, Oliver Twist

Hot and steamy summer days cause the mind to wander to hot and steamy days of yore.  In a sweltering July in 1925 - entertainment came from the radio as Bessie Smith and Ma Rainey's blues songs mingled with Tea for Two and If You Knew Susie to top the popular music charts.  Not much was happening in southeastern Tennessee so folks came from miles around to a courtroom - no matter what the temperature, the trial of John Scopes was the hottest thing that summer.  The Tennessee Legislature had recently passed a criminal law prohibiting the teaching of evolution from grade school through college, punishable by a fine.  With trial as theater and the ACLU advertising free representation, a civil liberty-minded group recruited Mr. Scopes, a general science teacher, to act as plaintiff challenging the law.  Friends of Scopes agreed to prosecute the case.  Along with an illustrious team, the great Clarence Darrow defended Scopes and William Jennings Bryan defended the law.  Every person involved in the trial had agreed to his role before it began...indeed Darrow asked for a guilty verdict in order to challenge the constitutionality of the law.  He got it.  And, in a masterful - though, to Darrow not at all satisfying - ruling, the Supreme Court of Tennessee did not reach the constitutionality of the law but reversed on a technicality (the law required a jury to fix the fine but the jury had been dismissed prior to the judge's administration of the $100 fine in violation of the law.).  It may very well be that the Supreme Court of Tennessee felt hoodwinked into the melee and chose to step aside rather than fight.  If so, it deserves more kudos than anyone involved in the phony trial.

The law would remain on the books until 1967, a year before the Supreme Court of the United States would rule - on a wholly different (and as Justice Black noted, unconstitutionally vague) anti-evolution statute in Arkansas - that such types of laws infringing upon teaching and learning violate the First and Fourteenth Amendments.  Considered a "landmark case", Epperson v. Arkansas in reality is as phony as the Scopes situation.  Mrs. Epperson, a teacher, was not charged under the law; she sued the state under First Amendment principles even though it appears that evolution was widely taught in Arkansas schools with no threat of prosecution anywhere.  By all accounts, the state's lackluster argument to uphold the statute indicated that it did not care about the outcome. Mrs. Epperson had already moved from Arkansas and was teaching - or not teaching - whatever she wished elsewhere in the country.

Indeed, these laws of fervor, many passed in the roaring 20's when the country fatigued from foreign war sought to nourish an ideal of American roots - in the Age of Prohibition while drink was scarce and crime was growing - when the first migration of African Americans from the Southern states to the great, gleaming cities of the North began - just 6 years after the 19th Amendment, women were taking charge in state houses of Texas and Wyoming - and so despite the quest to return to pre-war normalcy, everything was changing...and that scared people.  So, they did what people have done for as long as people have had language and known fear - they made rules so they could feel less frightened.  Rather than accepting change, they legislated a strict version of morality and decency that never has existed and never could in a diverse and growing nation. 

It's not new - it happens all the time and it is happening still.  On evolution, on climate change, on abortion, on marriage equality.  Perhaps folks believe that if they just make a law then everything that frightens them will go away.  They will "win" with laws.  Legislators of the past said flat-out what they sought to prohibit whether it was alcohol or teaching evolution or intermingling among races.  The statutes seem brutal through the rear-view mirror of our modern society, but it was more honest than today's deceptive approach.  Folks declare that their laws are really not about evolution or climate change or abortion or marriage equality or self-defense at all - they are about balance in education which challenges children to think; a healthy scientific division on man's contribution to the planet's health, if any; a safer medical environment for women; the sanctity of traditional marriage; and the ability to feel safe under threat through the use of force.  Poppycock. Many of the reasons center not on Constitutional principles or prior law, but rather a fundamentalist version of Biblical doctrine.  If those who attacked the laws did so less on a sense of right and wrong and justice and fairness but on First Amendment principles the challengers might be the David to the seeming Goliath.  It worked in Epperson.

Where the old approach presented straightforward language, they were flashes of rhetoric more than enforceable law.  Neither Scopes nor Epperson was prosecuted by the state; both were test cases designed to ridicule the legislature in open court.   But, this is no longer the case.  Despite budget woes, prosecutions, convictions and sentences do not wane.  Legislators are less blatant these days and more clever because they know they will face challenge in federal courts (something revolutionary in the 1920's).  The Supreme Court in the mid-1920's boasted the Four Horsemen of conservatism - McReynolds, Butler, Van Devanter and Sutherland - who are petting zoo ponies to today's Gang of Four - Roberts, Scalia, Alito and Thomas.  The Four Horsemen were balanced by the brilliance and courage of both Holmes and Brandeis but there is no such balance to the Gang of Four.  The Four Horsemen were conservative but not mean-spirited; the same cannot be said for the Court today.  Those in the Gang of Four are not conservative by any definition- they are reactionaries determined to create a nation that never existed from their own version of what is and what should be rather than the world in which they live. So, constitutional challenges today are less likely to succeed than they may have been in the 1920's.

In the 1920's legislators gave lip service to halt progress with no intent to pursue it and this seemed to satisfy the populace.  Today, states are actively defying constitutional principles long decided to a Court very happy to review them while a tiny but powerful segment of society foots the bill.  The Majority Leader of the House of Representatives is on record saying that Congress should not be passing laws, or even amending ones that fall short, but repealing them altogether.  Just as the state legislators pretend they are not seeking to infringe on people's rights with their myriad laws on what can be taught and how medicine should be practiced and whether oil pollutes the planet or just falls harmlessly off the edge, the House Majority leader feigns an interest in effective law enforcement.  With so many laws are on the books, he claims, the Executive Branch cannot possibly enforce all of them.  But, of course, the Legislative Branch has nothing to do with enforcement of the laws so why would he really care?  That is, pass the laws that make sense and allow the Executive Branch to enforce those it wishes to enforce. 

And therein lies the rub.  Regardless of the tools available, prosecution being expensive, states tend to pursue the easiest crimes, and the offenses du jour rather than destructive forces in society.  There is no question that some laws are enforced disproportionately: these include, but are not limited to, overwhelming prosecution for drugs and guns in poor communities with very little prosecution for scams and fraud in wealthy communities.  The state places the resources wherever it wishes.  So, for example states that are changing their laws in order to eliminate abortions will allocate resources to shutting down clinics that fail to abide.  Similarly states with "stand your ground" laws will not prosecute homicides where there is a claim of self-defense.  It really is not the number of laws or the content of the laws that matter.  For example, in Massachusetts, it is still a criminal offense to be a member of the Communist Party (or even to rent a hall to Communist Party members), to provide articles of "self-abuse" such as contraceptives, to cause a miscarriage "unlawfully" (let us know when things get too vague to interpret fairly) and to commit blasphemy, Commonwealth v. Kneeland, 20 Pick. 206 (1838)(never overturned - never again enforced).

John Boehner is leading the charge on dishonesty when he claims that in repealing laws he is seeking to fulfill the role of Congress.  For reference, the role is defined and restricted in Art. 1 sec. 8.  This is not to defend the state legislators trying to enact utterly unenforceable laws whether they be to deny that human activity is devastating the planet or to deny that two people of the same gender can have as valid a relationship and two of the opposite gender or to deny that women will obtain abortions or to deny that the earth is round and 4 billion years old.  Passing a law - even seeking to enforce a law does not make something false true.

In most states, George Zimmerman would have been convicted of a crime after he pursued, shot and killed Trayvon Martin.  We know why Martin was unarmed, but it is not clear why Zimmerman was - and Florida law does not care.  Young men in poor neighborhoods carry guns because they feel afraid of other people around them they know to be carrying guns.  By the "stand your ground" logic, exactly none of them is guilty of a homicide when the gun goes off - it's all self-defense, no matter who started it and no matter what the quibble.  This is not a defense; it is anarchy.  The traditional law of self-defense understands that people will, out of necessity, defend themselves or others by applying reasonable force under the circumstances to repel the force upon them.  Allowing for deadly force in the face of non-deadly force - allowing for pursuit rather than defense -  is so far removed from the roots of criminal justice as to be unrecognizable.

During the Boston Massacre trial John Adams explained that the British Regulars were armed (this was no secret; there was no such thing as concealed muskets) and many of the townsfolk on King Street were armed (again, openly, with clubs).  Deadly force was met with deadly force.  Outnumbered by and angry, armed mob, the soldiers fired out of fear for their own safety.   At no time before the "stand your ground laws" could non-deadly force be met with deadly force, especially when, by all accounts, the person who initiated deadly force also initiated the altercation.  That is not self-defense; at a minimum, it is murder mitigated to manslaughter; but in most jurisdictions, it would fall under some grade of murder.  If the point of a powerful army is deterrence then the point of carrying a gun is to show it, not to use it.

But there was something more in the colonial trial of the Incident on King Street; Adams also arguably asked the jury to acquit the defendants despite any animosity toward them or any law allowing them to convict.  This ancient right of the people to jury nullification has all but disappeared as the laws have gotten more and more insane. So, while Tennessee and Arkansas never had the intent to prosecute the teaching of evolution, had such prosecution occurred, a jury could have acquitted based on its distaste for the law.  Query whether this same jury-nullification process would be available as against a defense at trial.  For example, if the prosecution could illustrate that George Zimmerman did not act out his known ability to stand his ground under Florida law, but rather out of malice, could the jury nullify the defense provided by law rather than the instance where it can defy enforcement of unjust laws in prosecution?

It is a close question.  Rarely does a legislature write laws protecting otherwise criminal acts.  While jury nullification is one means of the people speaking out against the government, can it do so in order to convict rather than acquit?  Oddly, had the Zimmerman matter proceeded as do most felonies, by presentment to a grand jury rather than the cowboy style of prosecution employed, it is probable that the grand jury would not have indicted.  This demonstrates that the problem with the stand your ground laws.  While many are asking for reconsideration of these statutes, state legislatures do not have the same zeal of repeal as does John Boehner.  But it puts a difficult question to the idea of jury nullification whose goal is not to convict where the law is too lenient but to acquit when the law is too harsh.

The Scopes trial was arranged to get Dayton, TN on the map - the population had dwindled in recent years and the town needed some excitement.  The trial - which began, over objection, with a prayer - was broadcast live; the judge even wanted to set up the case in a tent to accommodate the crowds.  It was a carnival, a circus and all for show.  All of the actors were in on the joke.  Even where the people had sympathy for the law and adoration for Bryan, the law was designed as a deterrent not as punishment (the maximum penalty was a $500 fine).  But court cases today are no joke; even if they put places like Sanborn, FL on the map, they are expensive and destructive.

When laws are written as backlash to a changing world, they wreak massive havoc.  Prohibition and the Volstead Act gave rise to the success of organized crime.  Anti-Communist fears caused many people's lives to be upended.  While anti-child abuse laws have always been appropriate, the hysteria of the 1980's against day care providers was a direct assault to women working outside the home.  The rise in anti-abortion legislation even as the number of abortions has remained stable or fallen and even as the procedure has become much safer (most abortions are now medically, rather than surgically, performed) is nothing more than an attempt to strike fear into women; if enacted, it will result in more back alley abortions and deaths (along with a huge expense in shuttling poor women to safe abortion providers).  The rise in educational "reforms" on what people should teach and how in the age of the internet hosting free, amazing, online courses, is simply irrational.

Although they get a lot of press, many of the now-proposed laws mirror those on the books in most states, including Massachusetts.  We have a strict parental consent with judicial override law; we have requirements on explaining what an abortion is and the possible effects; we have a requirement to inform patients seeking an abortion of the alternatives to the procedure.  The question is not always what law is on the books, but its enforcement.  Massachusetts has no interest in expending resources to police a system that seems to be functioning safely and effectively.  As the statistics demonstrate, where abortion is available, fewer people have them and where it is unlawful, more people die seeking them.  While states should provide individual laboratories for experimentation, we know how this one ends up; more poverty and more despair.  It is ironic that the states seeking to restrict abortions are the same ones seeking to expand gun rights. 

Democracy is a funny business.  We want a say in what goes on in our lives but when it really comes down to brass tacks, we are not always happy with the result.  In places where they elect Tea Party activists, they get bizarre, often unenforceable laws that have no bearing on better government.  Those states tend to have higher poverty rates combined with weaker educational systems.  They have a patchwork of criminal laws that do not resemble justice.  This was not the intent or that aspiration of any of the Framers.  They were men of progress and of science and of hope in the ability of people to see beyond themselves for a greater good.

There is not one of the Framers who could understand a stand your ground law; the Wild West was not part of their history - indeed their revolution was a last resort borne from repeated attempts to compromise with Britain.  There is not one who could possibly understand legislating medical procedures; in their world pregnancy and childbirth was left to the auspices of midwives and medical school had not yet been created.  There is not one who would support denying scientific discoveries; theirs was an ongoing quest to learn as much as possible whether by flying a kite or creating a nation.  It is even doubtful that any would scoff at marriage equality; they were more progressive than people give them credit for being.  But, really, democracy is not about the past: it is about the now.

With new laws seeking to restrict voting power, to deny voice, to limit access to medical, nutritional and educational services, to restrict liberty - all of which will be enforced through devoted resources at the expense of promoting the general welfare - we must hold up a mirror and ask what exactly it is that we are doing with our gift of democracy.  John Scopes' "Monkey Trial" was a make-believe media event set up by those who sought to strike down a law.  Contrast that frivolity with the death of Trayvon Martin and the media-driven trial resulting in the acquittal of George Zimmerman.  In Scopes, the point was to make a mockery of the law; in Zimmerman, the law made a mockery of justice.

As the nation was forming, an inquisitor asked Benjamin Franklin what form of government the convention had agreed upon.  He replied that we had formed a republic... "if you can keep it."  It is worth keeping and fighting for, no matter how long the tale of grief and sorrow and trial and truth.  It anticipates mistakes and compromise and trial and error; but gives us all the opportunity to continue to establish a more perfect union.  Together.  For as long as it takes.

The End of Joint Venture for Possessory Firearm Offenses: Commonwealth v. Humphries Exposes Theory Flaws

Massachusetts has developed a rather unusual approach to accomplice liability when the Commonwealth's theory of the case is one of joint venture.  Having torn down the distinction between principal and participant, joint venture allows the Commonwealth to convict an individual involved - even if tangentially - in a criminal act regardless of whether there was an agreement to commit a crime and regardless of whether the offensive acts exceeded the realm of reasonable foreseeability.

The current incarnation of the theory is that because all "joint venturers" carry the same intent, all are charged equally regardless of individual action.  Because it is a theory and not an actual offense, it need not be charged in an indictment.  For clarity, in the Commonwealth of Massachusetts, whether an individual commits the actus reus of a criminal offense or s/he does not, so long as s/he aided and abetted the offense -even if only verbally - the common intent to commit the crime ultimately alleged is shared.  Now, to those who have actually thought about this it sounds a lot like conspiracy which, unlike joint venture, requires the Commonwealth to establish a relationship, agreement to commit a crime, and complicity only to the limit of the reasonable foreseeability of that agreement. Pinkerton v. United States, 328 U.S. 640 (1946).

The agreement within the conspiracy is the essence of the crime - the intent to participate in the offense and all that might flow from it - establishes the mens rea of the crimes that eventually occur.  Yet, with no agreement required, the theory of joint venture liability is fashioned entirely out of air.  The most recent case on this theory of liability exemplifies why its flaws; through these flaws it fails to comport with due process of law.  Although the outcome of the case appears to favor the defendant, it does nothing to advance criminal justice.  Even if accomplice liability is appropriately considered, the current state of joint venture theory is a civil concept and has no place in criminal law.

In Commonwealth v. Humphries, SJC-11237 (July 12, 2013), on both possessory and non-possessory crimes, the defendant was charged as a joint venturer.  The court addressed only the offense of unlawful weapon possession in its joint venture analysis.  Essentially, it reviewed the state of the law that an individual so charged could demonstrate by some evidence that s/he had a license or firearm identification card and shift the burden to the Commonwealth to disprove the defense of license.  The information regarding a license is uniquely known to the defendant in such cases.  Massachusetts has no statewide firearm license registry; the law leaves licensing to the individual police chiefs thus the work for the Commonwealth to prove this element is overwhelming and it need not do so unless the defense of license is raised before trial.  This post says nothing about the constitutionality of that framework both because the Second Amendment has been held to be an individual right and is applicable to the states and because the Commonwealth bears the burden of proof beyond a reasonable doubt of every element of the offense but routinely obtains a jury instruction informing the jury that it may presume the absence of license, merely that this is the state of the law as it stands.

However, when a joint venturer is involved, particularly one not charged with the defendant, that third party may or may not have had lawful possession of the firearm involved in the offense.  Due to the difficulty for the defendant to know this, the burden is not first upon him or her to assert license as a defense; rather the Commonwealth must now prove absence of lawful possession for the firearm of the third party (as to the defendant, the burden-shifting paradigm is the same).  The defendant in such cases need only assert the defense of license prior to trial to trigger this new element of the offense upon the Commonwealth.

Unpacking that a bit, the law now goes something like this: on a possessory offense, where the Commonwealth proceeds under a joint venture theory, if the defendant raises an affirmative defense as to a third party (the presumed joint venturer, whether charged or not), then the Commonwealth must disprove that defense in order to gain conviction.  This necessarily will cause prejudicial joinder in every single possessory case for firearms and motions to sever must be allowed in order to comply with Art. 12's mandate that every subject has the right to produce all proofs that may be favorable to him (or her).  The problem then lies in who is tried first because information gleaned from one trial (i.e. the defendant does not assert an affirmative defense of license, merely raises the question of license of the third party) can be used to convict the second one to face trial (because there was no evidence produced on the defense of license by the first defendant to face trial).  Joint venture does not require any kind of an agreement between the two parties that one member would carry a firearm and it does not recognize the reasonable foreseeability concept (also straight out of civil liability) that an individual who participates in an offense would anticipate consequences outside the immediate commission of the crime.

Query whether this triggers a de facto Wharton's Rule type of dismissal when only one person is charged.  Wharton's Rule - technically not required under Massachusetts law but almost always applied - provides that an agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as necessarily to require the participation of two persons for its commission.  Classic Wharton's Rule offenses include adultery, incest, bigamy, and dueling and all are crimes characterized by an agreement to complete the substantive offense.  

In Commonwealth v. Cantres, 405 Mass. 238, 242 (1989), the court declined to make a general determination of the rule in Massachusetts and stated, possibly in dicta, that it would not apply to conspiracy to distribute controlled substances.  That limitation is questionable after Humphries when, for example, the charge is distribution of under one ounce of marijuana or if there is a defense of a medical prescription for one or more charged – at least with the possession with intent to distribute – when more than one person is charged.  That is, firearms and small amounts of marijuana have moved from the category of presumptive contraband to mere evidence where the evidence may be lawful or excusable but that knowledge is in the mind only of one participant in the offense and as unknowable to any other participant as it is to the Commonwealth.

Taking that into firearms offenses, the Commonwealth has been known to prove complicity in an ultimately charged offense by demonstrating that an individual was aware of the presence of a firearm.  But if the firearm is possessed legally - and there is no way for the individual to know that - and there is no agreement to commit an offense, but an offense ultimately occurs -what culpability does the unarmed individual have?  Or, if several people gather together, some with lawful, licensed weapons and others without and one of the group commits an offense, what kind of liability accrues to those who indeed carried firearms, had no intention to use them save lawfully, and yet were present when a group member committed a criminal act? 

Wharton's Rule applies solely and exclusively to conspiracies and not to joint venture although given the construction of joint venture liability, it is unclear why.  Perhaps it is that the SJC has stated that joint venture liability finds its roots in accessorial or accomplice liability.  Yet, conspiracy or vicarious liability rests in agency law.  This is part of the analytical problem in all of the joint venture theory cases where the Commonwealth is not obliged to indict an additional element in order to net all alleged participants under the actions of the principal. 

Accomplice liability must be, and traditionally has been, a specific offense crime even if the underlying offense may be a general intent crime. Yet this is not the jury instruction given in a charge where the Commonwealth proceeds on joint venture liability.  The jury only must decide whether there has been proof beyond a reasonable doubt for the intent requirement of the underlying offense which, in this era of minimizing mens rea, is almost always a general intent to commit the crime alleged.  The tragedy of joint venture is that the government need never prove that the defendant agreed to commit the ultimate offense charged; merely that the defendant aided and abetted the ultimate offense in some way (or often, that the individual was present at the time the act occurred) regardless of any specific intent to engage in the act charged.

Conspiracy is a different offense altogether.  It has its roots in agency law with the idea that, due to the agreement itself, co-conspirators speak with one voice. United States v. Gooding, 12 Wheat 460, 469 (1827); Lutwak v. United States, 344 U.S. 604, 617 (1953).  This form of liability is vicarious: if two people agree to commit an offense and one person actually accomplishes it, the person who agrees is equally liable through the unity established with the agreement to act.  Thus, the government must prove the specific intent to conspire, the agreement to commit a crime, the fact that the crime alleged flows with reasonable foreseeability from that original agreement and that the conspirator who acted acted with the proper intent to commit the alleged offense.  The tragedy of conspiracy is the broad interpretation of reasonable foreseeability.

Accomplice liability and vicarious liability are NOT the same thing.  Accomplice liability requires both the mental state to commit the crime involved, the participation in some way with the offense AND the knowledge of the principal that the accomplice is there, ready willing and able to help.  It is satisfied only if the accomplice aids or encourages the principal with the intent to promote the crime.  Vicarious (or conspiratorial) liability presumes that all think and act as one; however even actual conspiracy cases have forced courts to shift away from full liability when they infringe upon the demands of due process.  See, i.e. United States v. Hansen, 256 F.Supp.2d 65, 67 n.3 (2003)(citing circuit court decisions questioning vicarious liability for offenses in which the defendant has only a slight connection despite the initial agreement to conspire.  The case also states at 67, "'Foreseeability' is the language of negligence law.  It is not a usual criminal law concept and surely not a concept that puts meaningful due process limits on criminal liability.")

While Massachusetts punishes joint venturers under the accomplice theory, it does not concomitantly increase the mens rea requirement of the Commonwealth's burden of proof.   And, it need not prove any kind of agreement as it would have to do in a conspiracy charge.  As disturbingly broad as conspiracy charges are, joint venture theory cases are often worse for defendants since the burden of proof is too low for an aider and abettor to be charged, convicted and possibly sentenced as the principal without any agreement with the principal to act.

Common law in Massachusetts recognized a principal in the first degree - the individual who with the required mens rea completed the act of the offense.  It also allowed for a principal in the second degree, which was essentially aiding and abetting.  The crime charged and the punishment varied appropriately.  That distinction no longer exists - the Commonwealth is free to charge all alleged participants as principals but present the theory of joint venture liability at trial to all of those charged.  The joint venturer's culpability depends on whether the principal commits the crime...even though there was no agreement to do so and even if no specific intent to perform the criminal acts committed by another exists in the minds of the co-venturers and even if the ultimate offense was not reasonably foreseeable to a casual participant in the events. Given that the Commonwealth can demonstrate accomplice liability from any indication of participation - regardless of agreement to do so - the casual comment could rise to the level of incitement.  This seems to fray the edges of due process of law.

Although there will be both puzzled faces and cheers from the recent Humphries decision, the case itself - along with all of the joint venture cases, especially since the landmark Zanetti case, should press counsel to question whether the theory comports with basic criminal law procedural requirements.  This is true in regard to the charge, the potential punishment, the idea that a co-venturer's statement, even if it would be considered "in furtherance of" a conspiratorial crime, could possibly be submitted against an accomplice without violating the prohibition against hearsay, the application of "reasonable foreseeability" where no initial agreement ever existed or need be proven, and the intent the Commonwealth must prove to obtain conviction which should be the specific intent to aid and abet combined with the principal's intent to commit the offense.  

Humphries is a case to celebrate so long as it is the beginning and not the end of the destruction of joint venture liability in criminal law.

Memorial Day Mentality

Crimes are comprised of action plus intent.  We call the intent element, a factor the government must prove beyond a reasonable doubt, mens rea. Intent, like any other element of the offense must be proven beyond a reasonable doubt.  In our society, we celebrate ordered liberty and chafe against a disordered mind, and therefore we presume sanity for all criminal defendants placing upon them the burden of demonstrating insanity or diminished capacity to form intent.

Without seeking to do so, the recent case of Metrish v. Lancaster, SCT Docket No. 12-547 (May 20, 2013) exemplifies that courts are comprised of humans and humans are uncomfortable with the disorder of mental illnesses.  Mr. Lancaster was a Detroit police officer with a long history of mental illness who killed his girlfriend.  He set out the defenses both of insanity and of diminished capacity; despite his defenses, he was convicted of murder.  After his conviction, the case was reversed for unrelated reasons.  By the time of his retrial, the Michigan legislature and courts had eliminated the defense of diminished capacity, the only defense Mr. Lancaster intended to pursue at his second trial.  The change in the law left him with the possible affirmative defense of insanity but no other avenue by which to attack the mens rea element of the offense. 

Framed within the brackets of Bouie v. City of Columbia, 378 U.S. 347 (1964) and Rogers v. Tennessee,532 U.S. 451 (2001), Mr. Lancaster argued that he should have been entitled to the diminished capacity defense as a matter of due process of law.  Briefly, Bouie was a Civil Rights era case where the offenders were involved in a peaceful sit-in arrested for trespass when they did not leave the premises.  The language of the trespass statute only mentioned entering (which the protesters were permitted to do) and not remaining (which they were not).  At the time of the arrest the only notice provided as to the crime of trespass was the statute.  Almost 2 years after the arrest (but apparently before trial), the South Carolina courts ruled that the trespass ordinance covered both entry and remaining on the premises.  The retroactive application to the Bouie defendants, however, violated due process as the Bouie defendants could not have been on reasonable notice that they were breaking the law since the plain language of the statute did not appear to cover the activity.  In short, the activity of the defendants was ordered and the crime as defined by the South Carolina courts was disordered.  The defendants were the good guys.

Rogers, on the other hand, involved a homicide.  At common law, a homicide could not be charged under Tennessee law unless the death occurred within one year and a day of the assault.  In Rogers' case, the victim lingered for 15 months, thus the defendant claimed the common law defense of a year and a day rule.  The Tennessee high court invalidated the antiquated rule and found that the government had proven Rogers guilty of the crime regardless of the date of death.  The Supreme Court agreed; application of this change did not deprive Rogers of due process.  In short, the crime as understood by the Tennessee Courts was ordered and the conduct of the defendant was disordered.  The defendant was the bad guy.

This backdrop predicts the outcome of Metrish v. Lancaster; his due process argument would fail since it was not based upon notice, as was Bouie, it was based on the state's power to define crimes and defenses as in Rogers.  In a terse and almost exasperated unanimous opinion, the Court explained that the defense of diminished capacity was not firmly rooted in Michigan jurisprudence...and was not widely accepted in all of the states... and therefore the judicial decision to eliminate it - and that retroactive application to Mr. Lancaster - did not violate due process. 

That ruling avers that despite the requirement of the state to prove every element of an offense beyond a reasonable doubt, if a challenge to an element of the offense was not "firmly rooted" in state law, the state can bar such a defense without offending due process of law.  Even the Court cannot really believe that to be true because defendants have the right to demonstrate that the state has not proven its case beyond a reasonable doubt.  Mens rea is an essential element of the offense; particularly with the presumption of sanity, a defendant should be entitled to present all proofs to demonstrate a lack of sanity.

In reality, what the Court said in Metrish v. Lancaster was that the Michigan courts did not unreasonably apply Supreme Court precedent in retroactively applying the court decision eliminating a defense within the meaning of the AEDPA.  The AEDPA, of course, is a legislative directive that so limits federal habeas claims as to infringe upon the First Amendment right to petition the courts.  The ruling in Metrish v. Lancaster almost hints at the idea that, if the Court were presented with the specific issue of due process as it relates to mental illness and mens rea, say in a petition for certiorari, the ruling might be different.

Or, maybe not; mental illness upsets order in the court.  Although not mentioned in Metrish v. Lancaster, in Clark v. Arizona, 548 U.S. 735 (2006), a case that came in on direct certiorari, the Court determined that everything related to the insanity defense would be in the hands of the states and thus almost seemed to eliminate a constitutional due process review.  That is, Arizona had eliminated a portion of the definition of insanity making the claim harder to prove.  The defendant argued that this reduced the burden of proof for the government, but the Court did not seem to mind.  The decision explored the history of the defense and its application throughout the states.  "[N]o particular formulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice." Id. at 752.   Clark - a profoundly well-reasoned opinion - is a beautiful, if sad, rendition of federalism and the power of the state to define its own crimes and punishments.

It is beautiful for its clarity and purity of federalist notions of state powers, but sad because given the discomfort society has with mental health defects, the Court could have provided a protective layer of due process or equal protection under the law to shield those with mental health defenses from the vagaries of mob rule.  While Blackstone's commentaries note the necessity of a "vicious will" to effect a criminal offense, the whole notion of a guilty mind almost seems to be a relic of the past. 


The insanity defense and all of its permutations seems to have its origins in the matter of Mr. M'Naugton.  In 1843 Scotland, his defense at trial for shooting civil service worker was that he was persecuted by aliens.  Testimony at trial was one-sided in favor of the defense theory of insanity; even the prosecutor's closing was half-hearted.  The jury was told that if it found Mr. M'Naugton insane he would be properly cared for.  They accepted that determination, found him insane and he went on to live another 20 some odd years in a state run asylum. 

The M'Naugton case itself is fascinating not only because of its contribution of the insanity defense but for other reasons.  For one, the gunshot did not actually kill the civil servant; medical treatment did.  Additionally, one author has speculated that M'Naugton was a political case and that the insanity defense discredited his political views; on the flipside of that observation is speculation that M'Naugton was a paid assassin who feigned insanity when he missed his intended target so as not to reveal the conspiracy.  Finally, the verdict so upset the public and the Queen that the House of Lords took the unusual step of posing questions to the courts regarding crimes as they relate to people suffering from delusions.  From its earliest days, mental illness as a reason to negate any element of a criminal act has made people uncomfortable.

And, that is okay.  Horrible acts should make everyone uncomfortable regardless of the circumstances.  Our courts have been long on punishment and short on mercy especially in matters of mental frailty.  We are afraid of those who cannot seem to conform their behavior to norms society has created; we are terrified of those whose behavior is violent, unpredictable and devoid of reason.  We crave the ability to find order in chaos which mental illness prohibits. 

Unlike the jury in M'Naugton's Case, modern juries do not learn that if they find the offender insane, he will be cared for, protecting himself and the community from his random and incomprehensible acts.   After designing a system dependent on sanity where we deprive people of liberty when they act with evil intent, we unfairly place on jurors the burden of eliminating punishment for acts that look to be heinous and criminal but for the lack of intent.  Few of us would be able to do that.  Courts and legislatures need not restrict and minimize mental health defenses because most mental health defense cases will become guilty verdicts.  There is no place for mental disorder in a system created for order.  Thus, before Metrish v. Lancaster, in Clark, the Court removed itself from the discussion on mental health defenses and relegated the policy decisions to states.

Insanity, even in states that have the broadest rules for its definition, and diminished capacity or diminished responsibility in the few locations where available as a defense, are very difficult to demonstrate.  Even if told that those insane or of diminished capacity will be properly cared for (i.e. away from society but just not in a prison environment), and that care will cost less to the taxpayer, the truth is that most juries still would convict.  At base, despite the protections of constitutions and rule of law, humans have not evolved so much that they possess more mercy than revenge.  Which is a shame because our prisons are the madhouses of the 19th Century with no proper care and even less concern for the mentally ill inmates.  Out of their minds but out of our sight.

While Metrish v. Lancaster mentions that Mr. Lancaster had been a police officer, there is no mention of the onset or derivation, or even the name of the illnesses from which he suffered; it makes no statement on whether treatment was available to him for him to keep his job or whether institutional barriers prevented him from obtaining the care that he needed.  And, that was not relevant to his case: he simply argued that taking away a defense available to him at the time of his actions violated due process of law.  The Court dutifully kept its answer limited to the question; in fairness it is not the Court's role to remind states that eliminating mental health defenses results in prisons full of mentally ill inmates.  Without proper guidelines that no one wants to create, the mentally ill, who did not choose to be sick, will be found guilty of criminal acts if they harm others.


On this Memorial Day, when we honor those who sacrificed and died so that we may be free, we might recognize all of those servicemen and women who return terminally altered in both mind and body from their experiences in places most of us could never imagine.  Some come back to a home that seems unfamiliar and struggle to find a way to navigate through a life they barely recognize.  We would do a deep honor to our veterans who are still with us if we radically changed our perception and our approach to mental illness not only in relation to their experience but to crimes and misdemeanors, and to society at large.

The Memorial Day remembrance began, years after the war ended, to show respect for the sacrifice of Civil War soldiers.  The nation mourned with such prolonged grief (a grieving period that today would be classified as a mental illness) that it needed a place to put the pain of 700,000 deaths; it needed to stop the persistent ache of a country's broken heart.  Unlike today's military ventures, that war was very much a shared experience.  Today, we collectively mourn the sacrifice of lost men and women, but it is less personal to most Americans. 

As we lay wreaths and place flags near tombstones, we could, however, esteem our returning veterans by recognizing that illness and injury is not shameful.  With so many in our military committing suicide after serving valiantly, we owe them and ourselves a focused effort to embrace the difficult journey of facing mental illness in all of its permutations.  Mental illness is not a rare occurrence; 1 in 4 adults, close to 60 million people, suffer from a diagnosable mental health disorder every year.  Most will not self harm and fewer will harm others.  But those who do will likely be convicted of crimes they could not, realistically, have the intent to commit. 

Not just in memory of our fallen but in honor of those who survive, we might revisit mental health as it relates to war and peace and justice in our times.  Regardless of what juries will do with the information, all defendants suffering from mental illness should have the opportunity to raise every possible claim in their defense.  The more we restrict the rights of the criminally accused, the closer we come to a police state.  As uncomfortable as it makes us, we must remember that the promise of ordered liberty requires proof beyond a reasonable doubt for mental intent even when the betrayal of mental illness disorders the mind of the accused.

 

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.