An Uncertain Remedy: The Loss of the Speedy Trial Right

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wrong Number: The Limitless Limited Search

The history of liberty is a history of limitations on governmental power, not the increase of it.      - Woodrow Wilson

We forget history at our peril.  And, so, the Supreme Judicial Court has decided, in Commonwealth v. Berry and  Commonwealth v. Phifer that when a cellphone is seized incident to lawful arrest, the police can, without violating the Massachusetts Constitution, search that phone for recent calls.  It is fair to proclaim that the Framers could not have anticipated the modern world; it is not fair to proclaim that they would have allowed government - without a warrant - to know or obtain information on who speaks to whom at what time on any given day.

Historically, searches have a way of sidestepping the law and then creeping into jurisprudence as though they had always been legitimate. Indeed, checking phone logs without a warrant bears a striking resemblance to Star Chamber practices of seizing and prying onto personal papers later used in prosecution.  In 1765, Lord Camden outlawed the practice as violative both of the principle against self incrimination and the repugnance of general warrants.

Not just nosy searches and seizures but also the proposed prosecutorial value of their fruits influenced early Americans as they pondered the Fourth Amendment.  In Warden, Maryland Penitentiary v. Hayden, Justice Douglas made this connection and noted,

Our question is whether the Government, though armed with a proper search warrant or though making a search incident to an arrest, may seize, and use at the trial, testimonial evidence, whether it would otherwise be barred by the Fifth Amendment or would be free from such strictures. The teaching of Boyd is that such evidence, though seized pursuant to a lawful search, is inadmissible.

Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 319 (1967)(Douglas, J., dissenting).  The testimonial evidence in that case was clothing matching witness descriptions of a robber that had been seized from a washing machine during a lawful search.  Justice Douglas' minority view was that anything taken by an individual without his consent and used as testimonial evidence violates the Fifth Amendment. Id. at 320.  His point, lost to history, was that by permitting a search here and a seizure there, pretty soon it all adds up to a withering away of the purpose of the Fourth Amendment, to protect a zone of privacy free from government intrusion and prosecutorial use (thereby implicating the Fifth Amendment). 

Justice Douglas' concerns proved prescient in Terry v. Ohio, a decision that now seems quaint, where the Supreme Court of the United States puzzled over the notion of a "stop and frisk." That famous case birthed the novel idea that the Constitution allows a police officer - who possesses not probable cause, but a reasonable and articulable suspicion that criminal activity might be afoot - to accost an individual and pat him down for weapons.  The decision was intended to balance police officer safety (an undeniably legitimate concern) with personal integrity (an undeniable individual liberty).

Additionally, the question arose as to whether any discovered weapons or contraband could be used against the individual so stopped.  The Court cited two cases that bear mention: a civil case from 1891 refusing the authority to force a woman to submit to a physical examination in a case where she alleged injury and damages and a 1914 criminal case where the Court excluded from trial evidence obtained by police when they obtained a key from a neighbor and then were granted access by a boarder at a private home from which they took incriminating documents to prove fraud by the mails in relation to lottery tickets.  It then wrestled with its duty to fashion a fair equation balancing safety on the one hand with personal integrity on the other before launching an analysis considering whether the evidence, if any, obtained in such an endeavor could be used lawfully to prosecute.  No contraband or other evidence was germane to the decision as it rested solely on a permissible pat-down was for weapons which, if illegally possessed could be prosecuted.

Although long forgotten now, Terry established a two step process regarding both the authority of the police to stop and frisk and the evidentiary value of items seized cautioning against, "lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions." Terry v. Ohio, 392 U.S. at 13.  This was a narrow decision designed to guard against street violence against police officers; it specifically stated that the authorities must obtain a warrant for any other search whenever practicable. Id. at 20.  Justice Harlan's concurrence emphasized the danger to law enforcement from concealed weapons (the word "weapon" appears 63 times in the decision), almost encouraging state legislatures to enact provisions to protect officers on the street.

In that case, Mr. Terry and his friends had been casing a shop with the intent to rob or burglarize it arousing the suspicions of experienced police officers who foiled the attempt.  Mr. Terry (and one other) carried a concealed firearm - he was charged and convicted of unlawful possession of the same and sentenced to 1-3 years in prison.   Today, we forget that the issue surrounded the danger of concealed weapons (indeed, the NRA is pushing for state legislatures to expand all firearms rights, as "individual liberties" protected under the Second and Fourteenth Amendments).  Indeed, this "limited and narrow" Fourth Amendment violation no longer depends upon a reasonable or articulable concern for crime or fear of weapons; stop and frisk is a daily event for many people of color.

As he did in Warden, Maryland Penitentiary, Justice Douglas dissented in Terry v. Ohio.  Championing the roots of the Fourth Amendment, he remarked that giving police more power than a detached magistrate, "is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment." Id. at 38 (Douglas, J. dissenting).  This path abruptly ended in a steep cliff off of which we have decidedly jumped.

To be sure, a stop and frisk is not the same as a search incident to arrest as a search incident to arrest must, necessarily, be premised upon probable cause.  While a stop and frisk balances the safety of the police as against the individual's right to personal integrity, a search incident to arrest is (a) to protect the safety of the police, (b) to secure contraband that could be destroyed, but not (c) to obtain evidence by which the authorities can then prosecute.  It is still a tool for safety, not a fishing expedition unless of course we are in Massachusetts and a cellphone is involved. 

Cellphones are neither dangerous nor contraband; the only purpose in searching them can be for the purpose of prosecution.  This is certainly a search under the Fourth Amendment and Art. 14 as one has a reasonable expectation of privacy in one's phone (and indeed in everything one wears or carries on one's body).  The comparison the SJC made to a gym bag seized in Commonwealth v. Madera is laughable -  a gym bag could hold not only offensive odors but also contraband and weapons that could pose a danger to police officers.  But a cellphone cannot.  It has private information including thoughts and personal contacts subject to other protected rights such as the right not to be compelled to self-incriminate, the right to free speech and the right to be confronted with live witnesses, rights completely ignored in these troubling decisions. 

Even if we put aside whether a cellphone is properly seized incident to arrest, it being neither contraband nor weapon, given the practicality of obtaining a warrant to search any of its contents, the Court should have so required.  Because the SJC found no constitutional violation in this "minimal" search, evidence thereby obtained will be admissible in violation of the Fifth Amendment and Art. 12 despite its testimonial nature (as Justice Douglas likely would find, who one chooses to contact and for whatever purpose such contact is sought is intrinsically testimonial and subject to Fifth Amendment protections).  The hemming and hawing over how tiny this step is and how limited it is echo the limitations the Court placed upon Terry-type stops which have exploded into "stop and feel", harassing lawful citizens and even into full-on arrests without probable cause.

By ignoring history, Americans have confounded our very purpose of self government.  It is not to eliminate government or the good that government can, should and must do to effect a civil, free and fair society.  It is, however, to protect individual liberties in the face of a police state.  Erosion of rights occurs in increments and we are like frogs set in a pan of cold water unaware that as the temperature increases we will eventually boil to death. 

Not To Be (Or, Why it is Nobler to Ask the Correct Question Than Suffer Outrageous Fortune)

Don’t search for the answers, which could not be given to you now, because you would not be able to live them. And the point is to live everything. Live the questions now. Perhaps then, someday far in the future, you will gradually, without even noticing it, live your way into the answer.  - Rainer Maria Rilke

Rilke begged the young poet (in all of us) to love questions as if they were locked rooms or books in a foreign language.  But, to love questions and open questions and decipher questions, we must ask questions.  Too often, we orient ourselves toward the staid and familiar without reaching into ourselves first to discover the question that needs to be answered.

After the watershed case of Crawford v. Washington, virtually every document, every statement, every out of court anything emerged as an issue lawyers mistakenly argued necessitated confrontation.  The question of confrontation and that of hearsay evidence are linked but not identical. We have all but forgotten the differences and how to address issues of hearsay outside of the Confrontation Clause. 

The evidentiary problem of hearsay evidence - and why it is generally excluded at trial - is that it presumes four things: (1) that the statement was made, (2) if made, such statement was both voluntary and intended to be factual (3) that the statement was truthful and (4) that the statement was not made mistakenly or in error.  The question of confrontation allows examination and evaluation of of the witness in relation to but also separate from any out of court statement s/he may have made.  Everyone is entitled to the benefit of the hearsay prohibition, but only criminal defendants enjoy the right to confront adverse witnesses under the Sixth Amendment.  In Massachusetts, it is unclear how broad a reach the confrontation clause has as it avers that every "subject" of a crime or offense has the right to meet the witnesses against him "face to face." MA Const. Pt. 1, Art. XII.

The history of the prohibition against hearsay evidence is fascinating; in the 14th Century, hearsay evidence was wholly admissible, then it was admissible only as corroboration, and finally, by the 18th Century deemed too ambiguous for a court of law.   It seems that early rules forced trials to finish in one day; hearsay was admitted as a management tool without regard to its harm.  But, as cross examination emerged as a means of seeking the truth, courts began to frown on out of court statements being used as proof of a crime or offense and trials took on a life of their own, unbound by 24 hour constraints.

Confrontation addresses the defendant's ability to cross examine the witness; outside of any statement, the demeanor, credibility, bias and character all merit evaluation.  But, the concerns about hearsay wonder whether the statement, if made, was intended to be truthful and, in fact, was truthful and not a mistake, regardless of the other attributes or flaws of the declarant.  Independent of the ability to cross examine the witness, courts have a duty to ensure fairness in the proceedings, not to permit any evidence that is not relevant or that is more prejudicial than probative or that will distract or confuse the jury - all hazards of hearsay evidence.


Indeed, hearsay begs to be believed regardless of its truth or the good character of the speaker.  Haunting lamentations in Nicole Brown Simpson's journals detailing her former husband's violence and threats were excluded from his trials as inadmissible hearsay.  Accepting the virtues of the declarant, as painful and as revealing as the journals were, query whether they would have added an element of truth to the trial or whether they would have prejudiced the jury against the defendant.  Courts of law cannot sanction the human desire to convict someone of murder because he is a cad or because his behavior and cruelty caused another devastating emotional distress.  And, so courts have put into place safeguards, including the prohibition against hearsay evidence, to ensure the fairness of trials.

Due to the problems with unsubstantiated out of court declarations, it creates a sea of trouble when hearsay supports the sole reason to deprive liberty.  Yet, relying on an older case and factors it outlined, the Massachusetts Appeals Court recently upheld a probation violation when the only evidence against the accused was an affidavit (arguably recanted in part) and a police report.  Neither witness appeared in court.  The hearing judge found the evidence "reliable" and therefore revoked the defendant's probation.  That revocation imposed a previously suspended sentence on the defendant. This, the Appeals Court declared, was justice.

They did so by relying on Commonwealth v. Durling, a case decided wholly and exclusively on the Fourteenth Amendment right to due process of law.  It announced that probation revocation hearings are not part of criminal proceedings.  It did so by citing to Gagnon v. Scarpelli, which held that a previously sentenced probationer was not entitled to counsel in a hearing focused on revocation of probation as such a hearing is not a critical stage of criminal proceedings. The question in that case asked whether and under what conditions the federal guarantee to due process mandated a hearing before probation could be revoked.

Yet, without any analysis of this ruling and without reference to any part of the Massachusetts Constitution, probation revocation hearings were removed from the realm of criminal proceedings.  Not only has this unusual decision never been challenged, but it is accepted without question.  Rules developed expounding its erroneous presumption so that probationers in Massachusetts have been denuded of their constitutional rights, privileges and immunities...all based on a misunderstanding of the question.

Massachusetts District Court Rules for Probation Violations Rule 6 allows hearsay at probation revocation hearings.  It explains that a revocation of probation based upon hearsay evidence may only rely upon "trustworthy hearsay" and where the probation officer has good cause for proceeding without a witness with personal knowledge.  Putting aside that neither of those requirements was met in Commonwealth v. Henderson, Massachusetts Appeals Court Docket No. 11-P-1302 (October 19, 2012), the rule itself harkens back to the long disavowed approach which prompted Raleigh's plea to being forth Lord Cobham and directly violates the Massachusetts Constitution which guarantees the subject of a crime or offense the opportunity to confront the witnesses against him face to face before being deprived of his liberty. MA. Const. Pt. 1, Art. XII.

This hearsay devolution is akin to the game of telephone where the first message gets garbled along the way.  In Gagnon v. Scarpelli, questions arose as to whether due process of law required any hearing as to probation revocation and, if so, whether the probationer would be entitled to counsel.  It does not discuss hearsay or confrontation; it certainly does not discuss them for a probationer facing revocation when his sole sentence is probation (rather than a previously suspended term).  Prohibition against hearsay predates the American colonies and it has long been applied to both civil and criminal matters.  Somehow, the message that filtered through to Massachusetts was that probation revocation hearings were not criminal proceedings at all; ergo they are not subject to constitutional principles or accepted rules of evidence. No one has questioned why and how hearsay can send someone to jail simply because s/he is on probation, an illogical determination and one that demands consideration.

Art. XII pertains to all "subjects"; its separate clauses, each beginning with the word "and", call into question any limitation of the protections it guarantees.  Its provisions apply to any offense; this encompasses those offenses that might impact probationary status.  The question is not simply the process due to a probationer, i.e. whether the Fourteenth Amendment requires a hearing and if so what form of hearing.  Review of a probation revocation hearing under Art. XII questions whether the state can act to deprive a subject of liberty without the ability to confront witnesses face to face and present all proofs that may be favorable.  The rule permitting hearsay, whether "reliable and trustworthy" or not, violates the mandate of Art. XII and must be challenged on that basis, not the federal constitutional principle of due process.

It is impossible, as Rule 6 permits, for a judge to ascertain the reliability or trustworthiness of an out of court statement.  Further, the problems with hearsay testimony generally prevent it from being used as the foundation for incarceration since there is no basis by which anyone can determine whether the statement was made in jest, in error or under conditions that call voluntariness into question.  But, beyond that, as Justice Marshall determined, laws and rules that fail to comply with the dictates of the Constitution are invalid.

It is not the job of lawyers to accept, willingly what appears to be or not to be.  To live the questions, we must ask the right questions.  Without them, we can never find the answers no matter how long we search. 

Fools Rush In

Angels in government have a long history; Jefferson asked if men could not be trusted with self governance were kings not men but angels entrusted to govern others.  Lincoln urged us to be friends seeking the better angels of our nature.  Madison explained that because we are not angels, we require "auxiliary precautions" to guarantee fair government.

It is in celebration of democracy that the system of checks and balances emerged in which the independence of the judiciary ensures a government of laws and not men.  It is precisely because we are human, full of flaws, that we require restraint which grew here in the form of an independent and impartial judiciary. 

Judicial tenure, however, requires good behavior; actions contrary to law and decency shall not be rewarded.  And, so there are in place mechanisms by which to challenge the impartiality and independence of individual judges.  In recognition of the notion of an independent judiciary, the recent Massachusetts case protects from scrutiny a judge’s thoughts and notes about individual cases.  Here in Massachusetts, the Suffolk County (Boston) District Attorney has accused a judge of bias -   according to the prosecutor, he rules in favor of defendants too often to be impartial.

To clarify: the Executive Branch has declared that the Judicial Branch protects individual liberty too much to be fair to the interests of the Commonwealth...despite the trust the people place in all of government to protect liberty.  Prior challenges to sitting judges have occurred, but for the opposite reason.  In 1973, Judge Troy was disbarred by the Supreme Judicial Court for abusing his office by, among other things, depriving criminal defendants of their constitutional rights, hiring but not paying lawyers who appeared before him, and neglecting his actual, judicial duties.   It was after Judge Margaret Scott was awarded the Kinlock Award by the Massachusetts Juvenile Police Officers Association bestowed upon those demonstrating, “excellence in his or her field of endeavor; that endeavor must be associated with our young people... [those] endowed with understanding, compassion and patience and a willingness to do more than the next person for tomorrow’s adults" that she was sanctioned for depriving those appearing before her of their individual liberties.   Understanding, compassion and patience apparently includes making up laws to convict the innocent, charging unlawful fines, and removing terrified children from the care of their loving parents.

Past judicial challenges involved the deprivation of Constitutional rights.  The current charge against the judge who shall remain nameless  may be the first time that judicial protection of liberty faces scrutiny.  Even if we put aside the question of whether the Executive Branch even has the authority to challenge the Judiciary - which may very well be prohibited by the Massachusetts Constitution Pt. 1 Art. 30, it is important to note that the judge in question was appointed by a former federal prosecutor and a Republican governor not known to be “soft on crime”.  The Executive Branch’s current disappointment in this particular judge’s interpretation of the law is less credible than Eisenhower Republicans’ disappointment in the way Earl Warren understood the federal Constitution.   But even they did not investigate him for bias due to decisions from his Court.

American history decries the prosecutors' actions against a sitting judge.  As noted in the recent opinion, John Adams spoke highly of an independent judiciary; but, he had to be disappointed in the case that assured the concept.  Politics are a nasty business and it has ever been thus.  Mr. Adams’ Federalist party reviled Mr. Jefferson’s Democratic-Republican party.  The peaceful transition of power from one to the other in 1801 is still a remarkable feat about which the United States should be proud.

The rivalry, the animosity and the disgust, indeed led to one of the greatest legal decisions of this nation’s history ensuring the independence and the impartiality of the federal judiciary which we understand now to be a fundamental aspect of all American government.  Adams lost a bitterly contested election to his former friend come rival, Thomas Jefferson.  The Adamses could not wait to leave the swamp of the Capitol and head home to Peacefield.  As one of his last acts, President Adams appointed several justices of the peace and left their signed commissions to be delivered.  No one did so and President Jefferson famously ordered them not to be delivered.  Mr. Madison, Jefferson’s Secretary of State, obliged. 

One particular appointee, Mr. Marbury, was so enraged at being denied his commission that he sued for it directly in the United States Supreme Court under a legislative provision so permitting.  The Chief Justice of the Supreme Court of the United States was none other than Adams’ appointee John Marshall who, like Adams, was an ardent Federalist.  Indeed, his appointment to the bench was part of a Federalist Party power grab - the Midnight Judges Act.  We forget how young and vulnerable this nation really was.  And, we forget that those who founded this nation were men and not angels.

Surely, Marbury presumed, Justice Marshall would see fit to grant him his commission.  So, it was an historic and game-changing moment when the Court ruled otherwise.  On the one hand, Justice Marshall minced no words chastising the president for failing to make good on his predecessor’s appointments; the commissions were signed and ready to be delivered.  On the other hand, Congress erred in its statute granting right to sue directly in the Supreme Court as Article 3, Section 2 of the Constitution grants original jurisdiction to the Supreme Court in limited circumstances.  Marbury v. Madison’s almost quaint and petty circumstances permitted the Court to become Supreme in the truest sense; there was no fear of retribution when Marshall criticized a sitting president or corrected Congress or determined a result with which no party was happy.  Whether popular or unpopular, Justice Marshall ensured an independent judiciary with this brilliant split of the baby.

Marbury, justified in his anger and his cause, lost as the court had no jurisdiction to hear the case.  Had Marbury sought his commission in an inferior court, he likely would have won, but he hedged his bets on the Federalist court.  John Adams had to rue the rushed appointment of Justice Marshall, right?  Maybe at first, as moments in nascent nations tend to try men’s souls.   But, many years after this fateful decision, in a testament to his own character, Adams declared that John Marshall was a gift to the nation and appointing him was one of his proudest accomplishments.

Putting this history into context, the current investigation of a judge sitting in a busy, low level trial court is an attack on justice itself.  American courts are courts of the people.  They are not arms of the prosecutor or platforms for the powerful.  They are, indeed, a place where individual liberties should be celebrated. 

Today, the Executive branch, in the form of the District Attorney is fighting a petty, undignified battle about which John Adams and Thomas Jefferson and James Madison would be ashamed.  For all of their differences and for all of their human foibles, our Framers genuinely believed in the rights established in the Constitution; we in Massachusetts are fortunate that one of these men was the architect of our own government.  Losing a battle in defense of democracy is noble; the Framers understood that men could more easily be likened to fools than angels and yet trusted people to do the best they could, allowing for history to answer the question of whether men could govern themselves without a monarch.

When powerful people in any branch of government abuse authority in order to deprive individuals, especially the most vulnerable among us, of their right to be heard, to find fairness and fight for liberty, we have a duty to halt that practice.  The strength of this nation rests on a foundation balancing rights, responsibilities and freedom.  Thus, when a judge of any court protects individual liberty and seeks to find the better angels in all who appear before him or her, that judge is a gift to the nation.

Presumption of Indigence: The Opt-Out Solution

In light of recent Massachusetts case law regarding indigence of criminal defendants, it might be time to change the rules: all criminal defendants should have counsel appointed, be assessed as to ability to contribute, and be provided with the option to waive appointed counsel and hire a private attorney.  As a practical matter, the opt-out process would modify little and cost the state nothing; indeed the Commonwealth might benefit from the change.  If the government guarantees and provides appointed counsel for each criminal defendant while also ensuring that those who can contribute do pay, the system will be far more honest and far more fair. 

Briefly, the Supreme Judicial Court reviewed circumstances in three cases as to which assets may be considered when defendants request appointed counsel.  In Commonwealth v. Porter, 2012 WL 2849456 (July 13, 2012), the defendant was deemed not indigent; if she could not find an attorney to accept the case for the fee the court determined was fair, the defendant could return to court to be deemed indigent but able to contribute.  In Commonwealth v. Mortimer, 2012 WL 2849450 (July 13, 2012), the defendant undeniably had assets, including a retirement account which would be attributable for defense costs minus fees and penalties for early withdrawal; however he had no access to many of the other assets due to prohibitions outlined in the Massachusetts  "slayer statute".  In Commonwealth v. Fico, 2012 WL 2849443 (July 13, 2012), the court affirmed that assets of family members including a girlfriend or parent may be reachable for criminal defense. 

The rules establish a cumbersome, expensive and ludicrous opt-in framework that ends up costing time and money for the already overburdened courts to figure out eligibility and price for a constitutionally guaranteed mandate.  It makes sense to switch the paradigm.

The Framers of the Constitution declared that criminal defendants shall enjoy the right to counsel (whether they like it or not).   The Supreme Court famously determined that this obliges the public to pay for the cost of counsel for anyone who cannot afford a lawyer.  The requirement is that counsel also be paid a reasonable fee for services rendered and that criminal defense attorneys be constitutionally effective in representing clients.  Today’s criminal defense environment encompasses the natural evolution of law, consequences of criminal convictions, the amalgamation of law and science, forensics and social science disciplines.  Criminal defense attorneys must have a wealth of knowledge and access to numerous experts in order to meet the minimum requirements of constitutional effectiveness. 

Although we rarely discuss it, the Massachusetts Constitution does not oblige criminal defendants to enjoy the right to counsel; it provides the opportunity to elect whether or not to obtain counsel. See, MA Const. Pt. 1 Art. 12 Because Massachusetts courts presume the election of counsel, the Commonwealth has already established the framework of an opt-out system. 

To the extent that opting out would affect the recent changes in the Massachusetts public counsel and private counsel divisions of the Committee for Public Counsel Services, it would illustrate the folly of seeking to place more cases into salaried public defender caseloads (which, after a tipping point already present, renders them ineffective as a matter of law opening up new litigation).  Salaried public defenders would only be able to accept cases of the truly indigent wholly unable to contribute to their own defense.  The private bar who accepts court appointed cases, however, would be eligible for the undeniably indigent matters as well as those able to contribute.  Because every defendant will be assigned counsel and assessed for ability to pay, the pool of those indigent but able to contribute may increase thereby necessitating more, not fewer, attorneys able to accept court appointed cases.

The opt-out framework would avoid the confusion, delays and litigation associated with whether or not an individual qualifies for counsel and it would cost less than the system in place.  Rather than requiring criminal defendants to bear the burden of demonstrating indigence by a preponderance of the evidence before having counsel appointed at the public’s expense, all defendants would obtain counsel subject to reimbursement costs where appropriate.

One recent case demonstrates the efficacy of immediately appointed counsel.  As the speedy trial clock ticked away, the court determined that the defendant was not indigent and could afford to pay counsel a fee determined by the court if the defendant could find a lawyer to accept the case for that amount.  The amount was roughly the same as the fee court appointed counsel would make if the case were assigned and went to trial.  If appointed, additional funds would be available for investigators and experts.  

Lawyers have a duty to make their client’s interests paramount.  In this circumstance, the client would be disadvantaged by hiring private counsel as there would be less money available for the required experts.  Therefore, an ethical lawyer would tell the court that s/he could accept the case but only if the client were deemed indigent but able to contribute – not for the lawyer’s fee - but for the ability to represent the client in today’s reality.  Whether the matter is a street crime requiring experts on ballistics or DNA or drug composition or a financial crime where the assistance of forensic accountants and financial expertise is beyond the realm of ordinary knowledge for an attorney, the lawyer would be constitutionally ineffective to accept the matter on a low fee without the ability to hire experts.

Therefore, the defendant would end up being deemed indigent but able to contribute in any event.  However, if the opt-out system existed, the defendant and her attorney would be working together on her case and the time spent on these hearings regarding whether or not counsel should be appointed would have been spent providing access to justice for another litigant.  The opt-out framework would save time and money for the overburdened courts with the net same result, a contribution by the defendant able to so provide.

Just like the system today, the vast majority of defendants would be deemed unable to contribute.  Just like today, a small number would opt out by refusing to submit financial information or by hiring private counsel who would file a notice of appearance at the earliest moment (the only difference would be an affidavit of the defendant affirmatively waiving court-appointed counsel.)  Just as today, some defendants would have an ability to contribute which would be assessed with a revisable payment plan subject to review.  What would be eliminated is the question of whether or not the individual qualifies for counsel.   

Perhaps criminal process should begin with a presumption of indigence with required financial disclosure by which defendants demonstrate their ability to contribute by a preponderance the evidence.  Any defendant who chooses to can opt out and hire private counsel.  The only thing that changes in the opt-out model is that criminal defendants will obtain counsel early on in their defense whether or not they can afford the full cost of hiring a lawyer.