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.

Pot Luck

What is it about cannabis that makes the legal system spin on its head? When the federal government decided to declare war on drugs, all of cannabis became a huge target. Indeed, despite the history of this country - and specifically this great Commonwealth - growing, cultivating, and manufacturing hemp into useful products, the entire plant family went out of favor. In the clan, hemp is like the nerdy, do-gooder, always helpful, productive cousin who quietly builds a solid life while the colorful, fun, popular cousins get all the attention and make all the dough. This blog has noted that with radical changes to all cannabis laws in states like Colorado and Washington, under the 10th Amendment, those states could revive and restore this plant to its utilitarian good regardless of the ill conceived war on drugs. Whether Massachusetts can join is, while not quite up in smoke, certainly cloudy given the recent decision in Commonwealth v. Palmer, SJC-11225 as combined with Commonwealth v. Pacheco, SJC-11216, Commonwealth v. Daniel, SJC-11214, and Commonwealth v. Jackson, SJC-11319.

On the one hand, the Supreme Judicial Court has now confirmed that the smell of marijuana does not and cannot establish probable cause to believe anything more than that people might be smoking marijuana.  It cannot justify a search or establish any indication of more drugs or contraband in the vicinity (Pacheco, Daniel).  And, the best part for police officers nearing the end of their shift is that they can accept that toke because sharing a marijuana cigarette is not a crime (Jackson).  Since the decriminalization of small amounts of marijuana in 2008, the expanse and limitation of distribution has been an open question since Commonwealth v. Keefner affirmed that while possession of under one ounce of marijuana is only a civil infraction, distribution - even of small amounts of marijuana - remains a criminal offense. 

Given the definition of distribution, sharing a marijuana cigarette satisfied the legal parameters.  The idea that distribution remains a crime for less than an ounce of marijuana is still an incredulous result given the fact that the law decriminalizing the substance was accomplished by ballot initiative with overwhelming numbers in favor of getting rational about a fairly innocuous substance.  Marijuana is not even considered a drug in North Korea...and it is completely legal....possibly because thinking is illegal so best to cloud the mind.

But, on the other hand, the SJC also determined that while possessing and sharing small amounts of marijuana is no longer a crime, actually growing it is.  Borrowing an analogy from an old public service advertisement, if the ballot initiative was the egg, Commonwealth v. Palmer is the egg in the frying pan.  It is a nonsensical, convoluted approach to dealing with an issue that -truthfully - is not an enormous problem. The approach - continuing to make cultivation of a plant a crime may very well hamper restoration of a sustainable, useful crop with multiple applications that could offer jobs in the farming, manufacturing, and textile industries while preserving open space and vistas that improve tourism and environmental health throughout the pastoral portions of the state.

However, in fairness to the SJC on the cultivation-as-crime result, the fault lies not in their statutory interpretation, but rather in the sloppy legislative action after an overwhelming number of Massachusetts voters sought to decriminalize marijuana.  That is, in Keefner, the Court extended an invitation to the legislature to fix the language, but the legislature declined because, apparently, they were too busy determining which offenses would lead to a "3 strikes and you're out" eternity in prison just as most other states are undoing their draconian sentencing strategies.   In any event, the legislators did not change the law despite the fact that the statutory language fails to represent the will of the people.

So, while one may possess less than an ounce of dried marijuana, ready to light up; it is unlawful to cultivate the same.  While it is okay to share one lighted marijuana cigarette among friends, it remains to be seen if handing a friend an unlit identical item is similar or somehow radically different.  The decisional law continues to beg for legislative action, but despite the majority of citizens in favor of decriminalization and a significant portion is certainly eying Washington and Colorado to determine how they regulate in the face of legalization, the Massachusetts Legislature has been silent.

In a democracy, the idea is that the state legislatures will be most tightly linked to the values of their constituents.  The Governor is a more distant executor of the laws and the courts remain most distant of all in Massachusetts due to their appointment and tenure until age 70 (although some jurists continue in recall years after official retirement). Strange that the legislature is least responsive to the will of the people.  This is particularly true in regard to criminal legislation.  Candidates run on "tough on crime" platforms and get elected - because, really who wants a leader to be "complaisant on crime"?  And then they enact laws that are (a) opposed to the will of the people who clearly meant to be tough on crimes that hurt people, and (b) often haphazard and impractical in their approach.  While Massachusetts Courts have fairly consistently been bastions of freedom and beacons for civil rights, they are stymied by poorly drafted legislation.

This dissonance screams for jury instructions that allow the 12 members of the community selected to decide the facts to consider all of the facts: in 2008, 65% of Massachusetts voters sought to decriminalize marijuana and roughly the same percentage - after an enormous and unfounded blitz by medical professionals, who seem to seek something other than their patients' well-being, attempted to derail the effort - voted to legalize the medical use of marijuana in 2012.  But the legislature, apparently unaware that they need to both lead and follow and so continue to do neither, just says "no."

Therefore, in a jury trial, upon the request of the defendant, who faces a loss of liberty if convicted, the people must be granted the right to speak to the validity of laws as well as the facts of the case.  The cases mentioned in this post had not gone to trial; three were interlocutory appeals from motions to suppress seizures from unlawful searches and one was a Commonwealth appeal from a motion to dismiss.  The cultivation case has the potential to get to a jury and if it does, the jury should be fully informed of the law and the facts: the fact that an overwhelming majority of voters want marijuana to be treated as a civil offense, if at all; that the equivalent amount of marijuana being cultivated by the defendant, when carried on one's person or ingested into one's body, is not a criminal offense; that incarceration is a possibility if the defendant is convicted; that the cost of incarceration in this Commonwealth is roughly $43,000 per year; and that there are collateral consequences to drug convictions that range from ineligibility to serving in the military to obtaining a loan for school and certain employment opportunities.  Juries need to have facts and law at their disposal in order to render a fair judgment.  There is nothing biased or unfair or inaccurate about any of these legal facts.  Indeed, a government of the people, by the people and for the people should celebrate its laws and ensure that they reflect the public will.  If the legislature refuses to do its job, the people must step in.

Colonists drank and smoked significantly more than Americans do today.  Clean water was difficult to obtain thus beer and wine proved a safer libation.  Tobacco and marijuana both were grown as cash crops wherever they thrived.  Until the Christian Revival movements of the mid-late Nineteenth Century, it was not really the ingestion of intoxicating substances, it was the abuse to the point of being incapable of contributing to society that portions of society frowned upon.  It's fair to say that most Americans still feel the same way as did our foremothers and fathers: drinking and smoking is fine in moderation.  While tobacco was probably stronger then, it was also more pure and not laden with addictive properties such as the nearly 600 ingredients added to make cigarettes more addictive.  Thus, smoking cigarettes today becomes a habit difficult to break with significant damage to the body (and offense to passers by therefore justifying anti-smoking legislation); combining that with "advances" in medical technology, the American fear of death, and mandatory medical insurance coverage - the problem quickly changes from a personal choice to an expensive public concern.  The same, however, is not true for marijuana.

If an individual grows marijuana in his home for personal consumption, or sharing with friends, several of the frightening aspects of the War on Drugs are eliminated: trafficking is eliminated thus FEWER drugs coming into the state; with less trafficking, there is less opportunity for organized crime and attendant criminal activity associated with organized crime such as prostitution and the presence of unregistered firearms;  indeed, if cultivating small amounts for personal use is permissible, that reduces the overall number of guns on the street "protecting" corners for trade; and the product is known to be pure, unlaced with deadly chemicals that have entered the street market for drugs increasing the medical emergencies associated with casual users.  Without suggesting that home cultivation serves an overall public good (although statistically it probably does), it also should not be considered a crime.  Legislating to permit cultivation of small amounts of marijuana could then open the door to legislation for cultivating industrial hemp as well.

America has serious problems.  Marijuana consumption, in reasonable quantities, is not one of them.  The the recent decisions in Massachusetts directing the police that the smell of burnt marijuana cannot satisfy the probable cause hurdle to search a vehicle must be lauded; they are a step in the direction of reclaiming individual liberties, many of which were lost in the Prohibition Era and throughout the War on Drugs.  At the same time, the legislature's inaction on clarifying that small amounts of marijuana - whether being smoked, in a pocket, in one bag or several, or growing in a pot of dirt - is inexcusable, creating both arbitrary and capricious outcomes in criminal cases, an abomination to criminal justice.

Informative jury instructions on the reality of what the people want versus what they received in legislative action might lead to more rational results; at least asking for them should sweeten the pot.

Mitigating Malice - What the Prosecutor Must Explain to a Grand Jury and Why

An educated citizenry is a vital requisite for our survival as a free people.
- Thomas Jefferson 

Indictment by grand jury, duly drawn from the community, sought to limit direct accusations by government officials.  Yet, grand juries have become an appendage of the Executive Branch of government which is often a tool of the Legislative.  The Fifth Amendment to the United States Constitution, provides for indictment by grand jury; it is deemed to be incorporated to the states via the Fourteenth Amendment.  But, in Massachusetts, with a constitution predating the United States' by almost a decade, the necessity of indictment by grand jury was not mentioned.  Federalist John Adams, the author of the state constitution, inserted the phrase, "the law of the land" into the Declaration of Rights Art. 12 which has been cobbled together with statutes and rules to establish a mandate for the practice.

Presuming the requirement for a body of people, rather than a government official, to indict, there lingers a question of responsibility: for the people to determine probable cause, must the Commonwealth present mitigating evidence?  In a split decision remarkable for the persuasive value for each of the three markedly different judicial opinions rendered, the Supreme Judicial Court tackled the question of whether the status of the target of a murder investigation as a juvenile alters the framework thereby requiring the presentment of mitigating evidence.  The short answer is that when a juvenile is charged with murder, the prosecutor has a duty to instruct on appropriate defenses and mitigating circumstances.  While the circuitous route to this conclusion is not wholly satisfying, the ramifications may lead to a slaking surfeit of historical magnitude.

In reaction to a spate of younger and younger members of society inflicting more and more violent offenses, Massachusetts law on juvenile justice radically changed in 1996.  Before then, a juvenile court would hold a two part hearing to determine whether the individual would be tried in juvenile or adult court; this affected a number of aspects of the trial as well as the sentence.  The new law altered several factors related to juveniles, but the one in question solely relates to murder.  Murder is a crime committed by adults and therefore those who are accused are indicted and tried as adults for all purposes.  The sentence for murder in the first degree is mandatory life with no possibility of parole (still true "on the books" for juveniles despite Miller v. Alabama) and the sentence for second degree murder is mandatory life with the possibility of parole.

First, the Supreme Judicial Court unanimously agreed that sufficient evidence had been presented to the grand jury; a conclusion in direct contradiction to the Superior Court judge who tossed the indictment. From there, the justices embarked upon three journeys which could not be more different or more interesting.  Justice Spina authored the dissenting opinion (joined by Justices Cordy and Ireland) which essentially averred the limited role of the grand jury and the power of the Legislature to fashion appropriate statutes.  Presentment of sufficient evidence for the grand jury legitimately to find probable cause to arrest for second degree murder satisfies any and all requirements: no special rules were necessary dependent on the defendant's special circumstances or the particulars of the offense.  Any other issues must be sorted out at trial.

The trial, claimed Justice Lenk, is the crux of the problem.  Weaving in recent Eighth Amendment jurisprudence and the traditional safeguards provided to juveniles, she noted that the troubling part of the accusation is that the charge itself decides how and where the case will proceed.   Because indictment for manslaughter retains the matter in juvenile court and affords the young defendant with protections unique to his circumstances, the grand jury should be so apprised.  The grand jurors should have sufficient information to indict for the proper offense in order to ensure a fair trial.

Justice Gants goes further (joined by Justices Botsford and Duffly) claiming that when prosecutors seek a murder indictment of any individual of any age and there are mitigating circumstances rising to the level that, if concealed from the grand jury it would impair the integrity of the proceedings, the government must instruct on the elements of second degree murder and on the legal significance of the mitigating circumstances.  Indeed, the decision says, "[u]nder Art. 12 of the Massachusetts Declaration of Rights and G.L. c. 263 §4, a defendant may not be indicted for a felony unless a grand jury, based on sufficient evidence, find probable cause..."  The statute is clear, the constitutional provision is not.  Either way, the point this opinion makes is that presentment of mitigating circumstances is meaningless without explanation to a lay jury and that the prosecutor also must conduct some investigation prior to presentment for indictment.  Only with the full picture can a grand jury indict properly. 

All three are thoughtful, well-reasoned and persuasive positions.  In essence: 

Justice Spina's conclusion is that the legislative determination, despite the reasons for treating juveniles differently, is not inappropriate for accusation: all mitigating evidence will be presented at trial and so it will all come out in the proverbial wash.  The role of the grand jury is not to parse but to realize whether probable cause exists or does not exist.  Unspoken is whether if grand juries must hear all mitigating evidence to determine probable cause, must a judge issuing a warrant hear such evidence as well and under what conditions does the minimal burden of probable cause require a complete picture?  That is, even assuming the ill conceived legislative directive, the response is not to place new constraints on an accusatory body which traditionally only heard evidence from one perspective.  

Contrasting that is Justice Gants who alludes to the investigatory history of the grand jury as a body separate from the elected or appointed government.  In this model, the grand jury is not just an accusatory arm of the government, but it seeks to establish and endorse community values separate from any desire of elected officials to prosecute.  These American roots run deep as the grand jury requirement post dated the travails of John Peter Zenger who was accused and arrested by government officials without input from the people.

While Justice Lenk takes an entirely different tack by incorporating the special circumstances of juveniles, supported by persuasive scientific research.  Her decision seeks to ensure that the grand jurors have a complete picture only as to this special population because the charge itself, in the hands of the Commonwealth alone, removes protections that society seems to want in place.

The overall effect of Commonwealth v. Walczak, 463 Mass. 808 (2012), without even trying, raises the spectre of jury nullification, an historical bulwark against tyranny.  And, it raises it in the accusatory phase of the proceedings.  Checks and balances of and by the three branches of government tempered by public sentiment establish the foundation upon which our republican system functions and these three approaches highlight this struggle.  Historically, investigative and accusatory grand jurors knew the penalty for the crimes they indicted.  They knew that their secret determination on probable cause could result in a public hanging.  But, as a majority of the Supreme Judicial Court expresses, grand jurors today are wholly unaware of the consequences of their accusation.  They have a limited role to conclude whether or not - mitigating evidence notwithstanding - the low threshold of probable cause has been met.  It is as though the powers that be do not want the people - there to protect against an authoritative government - to know the magnitude of this role.

This very approach has allowed for harsher and harsher sentences to attach to these offenses with fewer and fewer people apprised of the truth.  Putting aside the narrow majority related to juvenile murder accusations, query whether ordinary people would indict for crimes if they were provided with the aggravating circumstance that a conviction would result in a particular outcome.  Would it alter the process if grand jurors were given the range of sentencing options, particularly if there is a required sentence on any charge?  What if they were provided with the cost of incarceration per year?  To conclude that this is not the role of the grand jury is false.  Massachusetts has no constitutional provision save "the law of the land" (which has been deemed code for due process of law); the statute does not prohibit investigation and, indeed, encourages it.  If the grand jury is not a glorified arm of the Executive Branch enforcing the often draconian pronouncements of the Legislative Branch but is, indeed, an independent body, then isn't this information appropriate and even required?

In addition to the long and illustrious history of jury nullification for petit juries, there is a history of jury nullification for grand juries as well.  When Americans were not so afraid; when Americans were interested in the truth; when Americans still nursed their revolutionary battle wounds and experimented boldly with self governance, they disavowed rules and regulations that did not comport with their own sensibilities.  To do otherwise would be treason itself.  Scores and scores of people today bluster about the Constitution (they often have not read or understood) while 21st Century thought seeks guidance from 18th Century wisdom but few talk about the power of people to effect change by fighting back as jurors, grand or petit.  Indeed, our criminal justice forum has limited and constrained the voice of the people in ways unimagined by the Framers.

The federal Constitution twice protects the right to a jury trial for criminal defendants (three times if one counts interpretations of the Fourteenth Amendment granting independent due process of law) and it did so with a backdrop of jury nullification when enlightened thought embraced the law of the land.  The notion of independent townsfolk indicting (or not indicting) those facing a loss of liberty spoke volumes about what the new democracy intended.  That world, unlike ours, was one of limited voting opportunities (constrained primarily by property); all federal officials were indirectly elected by a relatively small enfranchised populace.  The voice of the people resounded in the courts where it now echoes in silence as too many cases resolve by plea (often dependent on grievous sentencing parameters) and courts prohibit juries from learning the consequences of the verdict.

But a majority of the Supreme Judicial Court, perhaps without even realizing it, just opened the door to raising and demanding that the grand jury be provided information on a variety of topics related not just to mitigating circumstances for juveniles, but also aggravating circumstances of the indictment itself.  The decision begins the conversation related to what the grand jury must know before it can accuse fairly.  This slight daylight allows for resurrection of the grand jury asserting its unqualified right not to indict. This is particularly vital where the course of procedures and the outcome depend on the accusation such as, for example, when a minimum mandatory sentence attaches to a particular charge.  The same clamor for voting rights must extend to juror rights: the beliefs of lay people representing the community matters.  There is no possibility that they will understand the ramifications of their decisions unless they are so instructed.

The question is not whether, in a democratic republic, juries, grand or petit, should be afforded the opportunity to correct an overreaching Legislature or an aggressive Executive.  The question is why the people who have created the laws and set the policies tremble in fear of what the populace will do with knowledge once they obtain it.

         

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.


 

What Do We Lose When 95% of Criminal Convictions are the Result of Plea Bargains?

What Do We Lose When 95% of Criminal Convictions are the Result of Plea Bargains?  The takeaway from Missouri v. Frye, 132 S.Ct. 1399 (2012) and Lafler v. Cooper, 132 S.Ct. 1376 (2012).

In Missouri v. Frye, 132 S.Ct. 1399 (2012) and Lafler v. Cooper, 132 S.Ct. 1376 (2012), the Supreme Court of the United States ensured that the right to effective assistance of counsel covers the plea negotiation process.  In Frye, the defendant was never made aware of a plea offer more favorable to the one he ultimately accepted.  In Lafler, the defendant rejected a plea offer because his lawyer gave him woefully inaccurate advice.  The sentence after a guilty verdict at trial was significantly greater than the one offered in the change of plea.  In both cases, the defendant was permitted to get a good old fashioned do-over due to counsel’s errors.  I charge you to put aside opinion as to whether this is a “good” or “bad” approach and just consider the magnitude of the Court’s conclusion which is to affirm, without much concern, the current criminal justice system in which roughly 95% of defendants change their plea rather than face trial.  This is a tragedy for American democracy. 

Here is the proclamation from the Sixth Amendment to the United States Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

If we really care about having a living, breathing Constitution, then we need to start with the language and unpack the meaning.  The original concept was to ensure that all federal criminal prosecutions, and all federal defendants, be treated equally.  The Framers could not have imagined the Fourteenth Amendment and the net it cast to include the Sixth Amendment’s guarantee to state prosecutions as well.  But, it’s fair to say that even the small government guys would aspire for the rights inherent in the Constitution to apply to all.  I am guessing that even today’s Tea Party folks want the rights of the individual, when facing the broad power of the state, to pertain to everyone equally.  This may be evidenced by the lack of outrage by conservatives and the failure to accuse the Court of overreaching when it decided McDonald v. Chicago, 561 U.S. 3025 (2010), the first case applying the Second Amendment to the states through the Fourteenth Amendment.  So, putting aside the fact that there were only 21 federal crimes in 1791 when the nation ratified the Sixth Amendment, and not many more by the time the Fourteenth Amendment became the law of the land, the rights described in the Sixth Amendment do apply to all equally, in state and federal court.

That means that in all criminal prosecutions, the accused shall enjoy a speedy and public trial by an impartial jury.  And, yet only 5% of the accused actually do enjoy this fundamental right.  Everyone enjoys freedom of speech, religion and assembly, everyone enjoys the right to be free from unreasonable searches and seizures, everyone has the right to have a gun in his home, but only 5% of those accused of criminal offenses and who face a loss of life, liberty and the pursuit of happiness - by the hand of their own government - have the opportunity to the rights guaranteed to them by the Constitution.  The very same section of the document also ensures the right to the assistance of counsel.  The Court seemed to affirm that of the Sixth Amendment Rights, the assistance of counsel reigns supreme and the others can, therefore, fade away; but at what cost to democracy?

The elegance and simplicity of the Sixth Amendment establish checks on two of the three branches of government by the people who elect them.  Given the requirement of a fair cross section of the community and the prohibition of exclusion of identifiable classes of people from the jury pool, juries weigh not only credibility of witnesses but the fairness of the law.  We say that jurors are the judges of the facts, but they are more than that: they are the keepers of the trust societies build to enhance a sense of ordered liberty.  Query the bizarre current system where we need juries to keep us honest but we deprive jurors of their right and obligation to serve when we resort to pleading cases designed to be tried.

To prove a criminal offense, the Executive branch must have authority from the Legislative in the form of a criminal statute and then the Executive Branch must, within the parameters of fairness, prove every single element of that offense beyond a reasonable doubt to a group of citizens who must agree unanimously on their verdict.  That difficult bar was, and is, intentional.  The tremendous power of the state to deprive us of our liberty, perhaps the most astounding of the freedoms we enjoy, is so profound that the system is designed to wield that power judiciously with the assent of people from the community.

What does it say about us, as a society, that we no longer feel we have the time or energy or money to engage in that magnificent exercise of democracy?   What does it mean when our highest court capitulates the jury trial and the role of the juror in criminal justice?  And, what does it say about who we are as a people drunk with our own lofty ideals of freedom, democracy, individualism, and honor if we can spend trillions on wars in foreign lands but we cannot fairly try all of our neighbors accused of criminal offenses?  Who are we if we can ask our fellow citizens to give their lives for everything we profess to believe when we are unwilling to ensure the protections of the Constitution by providing the means for trials by jury for all who stand accused?  With fewer trials, we have fewer experienced trial attorneys.  With fewer experienced trial attorneys, we will certainly have even fewer trials.

The ramifications of Frye and Lafler will, undoubtedly, be discussed, debated, and understood only through time.  Because the system relies on the efficacy of plea negotiations, it is unlikely that the government will stop making offers.  But, prosecutors will live with a new fear that if a plea is rejected, they will face the possibility that the defendant will move to vacate a trial verdict due to ineffective assistance of counsel solely based upon the plea offer.  Because the government cannot, at any time, interfere with the attorney-client relationship, there is no mechanism in place to pre-empt the situation in Lafler; for the identical reason, the government cannot directly present the defendant with the plea offer and so the government cannot prevent the situation in Frye.  Perhaps this will lead to more careful work on the part of defense attorneys, but it is more likely that it will lead to even more pleas for fear of making a mistake.  And, hence, more mistakenly pleaded cases.  The end result is that there will be fewer eyes on the criminal justice system to ensure its fairness.  That alone is a tragedy of epic proportions.

Some reports stated that in Frye and Lafler the Court extended greater rights to defendants in plea negotiations.  I challenge that idea.  Defendants’ rights have not changed; the Constitution ensures that every single person accused of a crime will, with the assistance of counsel, face an impartial jury in a public trial within a reasonable period of time.  The cases were no more about defendants’ rights than they were about an impartial jury; the cases were about lawyers.  As the Court explained in both decisions, the notion of effective assistance of counsel has included pretrial, trial and post-conviction practice for a significant period of time (but we are still a little wobbly on the exact moment the right to counsel attaches) and it therefore definitively includes plea negotiations.    

With the vast number of cases resolved short of trial, there are fewer, not more, protections; the cases did not expand anyone’s fundamental rights.  Can a prosecutor offer a one-time-only plea, even before all of the discovery has been produced?  What about on the day of trial?  Does everything – or anything – need to be in writing?   What must a defense attorney do to ensure that s/he was “effective” in counseling a potential change of plea?   Must there be a recording of the discussion with the client about any plea offers?  Will a case in which a similar circumstance to either Frye or Lafler always hinge on the action or inaction of the attorney, or will judges, influenced to some degree on the cost of trial and the backlog of cases, aver that they would not have accepted the negotiated, but inappropriately rejected, plea and thereby not find ineffective assistance?

Although these cases, with a disconcerting nonchalance, willingly accept a lack of democracy in jury trials where the Framers clearly intended extraordinary democracy and do not lament criminal justice shrouded in secret negotiations, they raise more questions than they answer about what defense attorneys, prosecutors and courts must do to ensure fairness in the unfair process of plea bargains.