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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Record by Proxy: Vicarious Consent Just Crept Into Massachusetts

Boston has been inundated with photos and surveillance tapes for the worst of reasons since April 15, 2013.  We learned, or perhaps were reminded, that we are being watched.  And, as a matter of legal fiction, we consent to being watched pretty much all the time once we leave home.  What we do and with whom may be caught on still or moving pictures.  Outward gestures, glances, clothing choices and all non-verbal communication are fair game.  What we say, however, is usually thought to be a private matter.  The government needs to obtain a warrant to listen in.  This is particularly true inside our homes.  Those conversations are certainly within a sphere of privacy.

The thought that comes to mind in cases of wiretapping is of political corruption or organized crime - secretly recorded conversations, maybe with informants wearing wires.  It is not of a videorecording device in the bedroom of a family member to catch a suspected pedophile.  In Commonwealth v. F.W., 465 Mass. 1 (2013), a woman had been sexually assaulted by her paternal grandfather as a young girl.  While she did not report the abuse to authorities, she did tell her grandmother but it made little difference.  Understandably, she became distant from her father's side of the family.  For unexplained reasons, as an adult, she resumed contact with this branch of the family.  The branch of the family, including the (allegedly) abusive grandfather live at the woman's father's home.

This woman has a sister who is a non-verbal, autistic, minor child.  Despite her disabilities, the sister conveyed a joyful disposition, often smiling and acting affectionately.  Thus, the woman became alarmed when her otherwise happy sister became withdrawn, sullen and tearful.  The woman suspected the grandfather of sexually assaulting her.  Because her sister cannot speak or, it seems, convey specific information through a computer writing program, asking her about allegations would not be productive. The woman did not remove the child from the home, but instead set up a videorecording device in her father's bedroom to confirm her suspicions.  Which, sadly, it did.

The videorecording device captured video of the grandfather (allegedly) unzipping his trousers and forcing oral sex upon his disabled granddaughter.  The defendant did not move to dismiss the video itself; he moved to dismiss the statement on the recording where he (allegedly) said - as he held the back of the victim's head near his crotch.  The statement, "put it in your mouth" was the subject of the motion to suppress which was premised upon the federal wiretap statute that prohibits intentional interception of an oral communication. 

Query whether, if the case went to trial, assuming the video came in along with evidence of the victim's change in demeanor and the woman's testimony of her former abuse by the defendant (as part of a pattern or practice) anyone would need to hear that statement in order to convict him of the charges related to sexual assault of a minor.  It seems highly unlikely.

The Commonwealth, for reasons that remain a mystery, argued that the defendant had no reasonable expectation of privacy in the statement because the recording was not in a private enough place since the defendant did not have exclusive use of the bedroom where the woman set up the camera.  This "argument" does not even make sense: the man was in his own home, a home he shared with others, but clearly within the sphere of privacy protected by the Fourth Amendment and Art. 14 in light of the fact that they both stress the idea of security in one's home.  The SJC made short shrift of that.  Conversations inside the home are private enough to warrant protection.

The argument, presumably by the defense, was that the federal wiretapping statute applied in that what the woman did by recording a conversation to which she was not privy and in which no party had consented violated the federal law.  In response, the government argued that the statement should not be suppressed because the woman could vicariously consent to a recording of the conversation for her disabled sister.

Ummm...no.  The Fourth Amendment and Art. 14 apply to unreasonable searches and seizures by the government.  It does not apply to sisters concerned about their autistic siblings.  While it is true that if the sister had intended to intercept an oral communication or knowingly intercepted an oral communication in violation of the statute, the statement could be subject to suppression (or other exclusion from trial).  But, those were not the facts of the case.  The adult sibling did not recall any statements by her grandfather to her when he (allegedly) abused her.  The adult sibling could not have intended to intercept oral communication because the minor child could not speak.  To the extent that ANY statement would be uttered (and there would be no reason to think there would be), it would be a surprise.  The purpose of setting up the camera was to confirm the suspicion of abuse, not to intercept an oral communication.  Because any violation of the statute requires scienter, the adult sibling did not violate it.

It is inconceivable that the events would have taken a different course if the video were silent.  Law enforcement reviewed information provided voluntarily by a citizen who conveyed not only her own history with the defendant but evidence of the defendant sexually assaulting a disabled child.  Upon review of that evidence, they acted appropriately in calling the defendant and asking him to come to the police station which he did. 

The police provided constitutional safeguards pursuant to Miranda v. Arizona and obtained a valid waiver of rights, pursuant to due process of law as deemed adequate by Supreme Court decisional law.  The officer asked the defendant about his past contact with the woman and with the victim.  The defendant not only admitted his actions but when asked specifically about observations the officer (hypothetically) saw on the video, the defendant said that he, "just wanted to see what she would do and got carried away."  There was no basis to move to suppress that confession.  With or without the statement to the child, this case was a good candidate to ask for mercy from the court.  There is no identification problem; there is no question of the offense; there is no consent defense available to sexual assault on a minor, disabled child.

The statement itself adds nothing to the prosecution's case and even if it could be suppressed, gains nothing for the defendant.  This was a clear case of a defense attorney without a strategy or purpose resulting in potentially disastrous decisional law.

There may be evidentiary reasons to exclude the video and even the statement from a trial, but suppression is unavailable.  The insidious argument that the federal wiretapping statute applies to such a recording is not only terrifying but it is manifestly wrong.  There was no intent to capture an oral communication; a woman set up a videocamera that the parties did not know was there which could happen to, oh I don't know, a presidential candidate at a private, expensive dinner party.  Even if it were subject to the wiretap statute and even if there were a hint of a willful violation of that statute, that might present a civil charge against the woman or a request to the federal government to prosecute.  It might even advance reasons to exclude the evidence from trial, but that does not make it eligible for suppression.


The first question regarding a motion to suppress is to discover the reason for suppression, if any.  Given that there was no government action, the only authority for suppression would be the statute.  But, there was no knowing intention to intercept an oral communication and thus the statute does not apply.  That ends the discussion.

Of course, that did not stop the SJC from taking the question on a rare interlocutory appeal by the defendant and doing the analysis backward.  Rather than starting with the statute to see if there was a violation, it started with the defendant's reasonable expectation of privacy for the conversation which is just...weird.  The question on the constitutional principle is not one of privacy at all, it is privacy from THE GOVERNMENT.   From the government, people have a right to privacy in the area around their homes, inside their homes and in their bedrooms.  But, the government did not invade a the area around a home or inside a home or a bedroom.   The government looked at a videorecording and questioned a defendant who confessed. In any event, the SJC determined that people DO have a reasonable expectation of privacy inside bedrooms of their own home (whew!) and then addressed the vicarious consent issue.

Vicarious consent is a bizarre legal fiction that came into being when parents in bitter divorces started intentionally recording conversations between their minor children and their former spouses on their home telephones.  Neither the child nor the other parent knew of the recording.  That DOES violate the federal wiretapping statute because...it...is...wiretapping.  And it is a violation of the federal statute which requires that at least one person to consent to the recording (and it really offends the concurrent Massachusetts law which requires all party consent - a fact utterly ignored by the SJC in its vicarious consent ruling).

The parent who recorded the conversation illegally could claim that s/he vicariously consented on behalf of the minor child and therefore single party consent would be satisfied.  In Pollack v. Pollack, 151 F.3d 601 (6th Cir. 1998) the mother recorded conversations between her minor child and the child's father and step-mother and provided the offending ones to her lawyer who then contacted the authorities about the father's emotional abuse of the child.  The father sued the mother under the federal wiretapping statute.  The mother claimed that she only recorded the conversations due to a concern for her daughter.  While the Court of Appeals for the Sixth Circuit applied the fictional vicarious consent doctrine, it did not conclude that the mother acted solely for pure purposes and remanded the case with instructions of application of the doctrine itself.

Vicarious consent has never been accepted formally by the Supreme Court for any purpose, let alone in  criminal case alleging a violation of the wiretap statute.  The courts that have accepted it seem to apply the doctrine in family disputes and related cases.  The doctrine makes some sense in the matter of child custody cases: if the party can demonstrate that the recording was not out of malice and was made solely out of concern for the child and the recording itself illustrates some nefarious actions by the other parent...then the court might be warranted in restricting or limiting or constraining visitation with the child, or even ordering some counseling for the parent...not send the parent to prison.

When permitted, vicarious consent has applied solely to parents and it seems applicable solely in civil disputes.  But, in Commonwealth v. F.W., the SJC allowed an adult sibling acting in the best interest of the minor child to consent vicariously to recorded conversations between the (allegedly) abusive grandfather and the child.  It did so, presumably, because the child's father and grandmother incomprehensibly did not step in to protect the little girl.  The sister's actions were noble and pure in every sense, but that does not make them a legitimate exercise of vicarious consent, even if vicarious consent were a legitimate concept in a criminal case. 

Even the idea of vicarious consent to record a "conversation" in which only one party could speak is bizarre.  Query the application if an actual, voluntary conversation took place, perhaps between a 15 year old girl and her 17 year old boyfriend; is that enough to establish vicarious consent for a parent or a concerned sibling to record the conversation?  What about a concern about smoking marijuana?  Hanging out with a rough crowd?  Given the ruling in Commonwealth v. F.W., what authorizes vicarious consent for conversations under the federal law?  And, by whom?  What application is there of the Massachusetts law which requires all party consent to recorded conversations?  Even if there is some validity to a notion of vicarious consent, tracking criminal offenses between family members does not fall within its ambit.

This is not to say that the woman was wrong to make a videorecording.  It was not wrong of her to turn the evidence over to the police.  It was not wrong for the police to question and arrest the defendant upon his confession.  And, it is not wrong to prosecute the defendant for heinous crimes against one of the most vulnerable members of society.  It is not even wrong to move to admit the videorecording and the statement recorded. 


Knowing that - regardless of the ruling on the admission in evidence of the statement - the video of the defendant (allegedly) opening the zipper of his pants and holding the back of his disabled granddaughter's head to his opened zipper would be admissible in court, there was no rationale to move interlocutorily regarding the statement.

Had the courts simply analyzed the statute and not the substantive issue, the result would have been the same (no suppression of the video or statement) but vicarious consent would not have been introduced into Massachusetts jurisprudence.  This is why it is really important to read the statutes first and seek their application after, not the other way around.

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.

Driven to Extremes

Concerned about acquittal numbers in criminal trials for operating a motor vehicle under the influence of alcohol, the Massachusetts Supreme Judicial Court commissioned a report to identify issues related to this perceived phenomenon.  The report is thorough and explanatory.  It seems that the primary reasons for high acquittal rates have nothing to do with corruption within the system, but rather weak cases for the prosecution combined with defense attorney operating under the influence specialization.  This comes as no surprise as a quick search of "oui" or "operating under the influence" does not return statistics on deaths or accidents, it yields names of lawyers holding themselves out as skilled in this type of defense alone.

But, one surprising outcome of the report was included in its four recommendations, three of which are unobjectionable on any level as they tend more toward fairness in the proceedings and the ability of the fact finder to ascertain the truth of the event.  But, one recommendation (which, the Supreme Judicial Court admits would require legislative action) is to amend G.L. c. 90 sec. 24(1)(f)(1) to deny the restoration of a driver's license, suspended upon refusal to take a breathalyzer test, regardless of the outcome of the case.  Assuming the driver has the right to refuse the test (knowing that his or her license will be suspended automatically for that refusal), why shouldn't the privilege of driving be restored immediately upon a determination, as outlined in the statute, within 15 days of offense if the officer did not have probable cause to stop the person or, certainly upon acquittal or dismissal of the case?  The minimum suspension of a driver's license for refusing to take a breathalyzer test is six months.

Breathalyzer tests may not be consistent or reliable; results may be challenged effectively at trial.  But, there is a presumption of guilt with a reading of 0.08 or higher.  Query the purpose of the law: to prevent erratic driving due to the influence of drugs or alcohol.  A sleepy or elderly or newly licensed or distracted driver may be more dangerous than one who has a high tolerance for alcohol; but if they are stopped for another reason, their licenses will not be suspended.  The suggestion by the otherwise thorough and compelling report to suspend people's driver's licenses for a minimum of six months, whether innocent or guilty of a specific offense, or whether there is even probable cause to arrest someone is an invitation for abuse by the police as well as a swift slide down a slippery slope.

It is reasonable to place a minimal penalty on the refusal to submit to a breathalyzer (and query whether the refusal alone suggests a higher brain functioning and reaction time than one who submits).  However, the statutory suspensions are lengthy and can be burdensome to individuals who depend on cars for their livelihood.  Further, mass transit options in some parts of the state are non existent and even if one has a bicycle and the ability to ride, winter is cold in Massachusetts.  A rule change may result in an innocent person who was not impaired but refused the breathalyzer for any one of a number of legitimate reasons to be acquitted of the offense but possibly lose her job and her ability to manage her life. That seems extreme.

Putting aside the overdependence we have on cars and putting aside that there are additional options and putting aside that driving is a privilege and not a right - all legitimate, but irrelevant, issues.  The question is what penalty do we assign to the refusal to submit to a potentially faulty test, the refusal of which is not admissible evidence in a court of law, when the government is incapable of proving guilt beyond a reasonable doubt?  The statute itself states that by getting behind the wheel all drivers consent to this test - the individual who refuses negates this presumed consent and sacrifices the loss of a license for a short period of time.

However, the potential for restoration of rights necessarily advances the case more quickly through the courts with the potential to clear the docket.  The knowledge that a mere arrest - even one without probable cause - would result in a loss of license regardless of outcome relegates the case to a low priority for both parties resulting in even further clogged court dockets.  Such a determination suggests a poor example of due process and fair play, the very attributes of government that prompt apathy and disaffection, not responsible citizenship.  And, to what end?

Collateral consequences are serious matters not just to defendants, but to justice itself.  This is not to say that driving a car or the deprivation of that privilege is anything close to being deported (as in Padilla v. Kentucky), but for many years, courts had incorrectly concluded that immigration consequences were collateral damage to convictions and not a basis for withdrawing a guilty plea.  The collateral consequence of a loss of license despite innocence may be utterly unknown by the individual who is not in a position to obtain legal advice before making a decision to submit to a breathalyzer test.  Indeed, innocent food products, common medical conditions and poor machine calibration could result in a presumption of guilt.

Operating a 4500 pound machine that can move at a pretty nice clip with only a foot touch on a pedal is an inherently dangerous undertaking.  Impairing that action by ingesting a substance that delays reaction time and confuses the mind is the equivalent of walking around with a loaded gun.  It might not go off, but if it does, some innocent person can die.  That is tantamount to second degree murder, not the vehicular homicide misdemeanor we embrace.  The minimal consequences of a guilty verdict for drunk drivers is, quite frankly, too low.  But, if someone is not impaired, but merely fearful of a test that might demonstrate impairment and, indeed is acquitted of the offense of driving while impaired, the continued loss of a license is unconscionable.

Our foundation relies on the belief that it is more important to protect the innocent than punish the guilty.  Criminal defendants enjoy the presumption of innocence and the burden of proof beyond a reasonable doubt rests solely upon the government for each and every element of the offense it charges.  The suggestion that a punishment, whether collateral or otherwise, be imposed upon an individual even where the government failed to prove a crime is antithetical to our founders and the constitutions they placed in our safekeeping.

Incarceration Without Representation

Colonial juries often acquitted criminal defendants to save them from harsh punishment.  Jury nullification was common long before the nascence of the Constitution.  As exemplified by the trial of John Peter Zenger, juries had emerged as a protection of individual liberty as against the power of the state.  Not only do criminal defendants have the right to an impartial jury (or, in the case  of Massachusetts, judgment of peers) but also members of society enjoy the right to participate as jurors. The very idea of jury trial is to assure the fairness of trials for the government, the accused and the community.

It would seem, then, that composition of the jury is equally important to the defendant, the prosecutor and the rest of society.  The Constitution, indeed, offers a variety of avenues to travel when we journey into jury trial terrain: Art. 3, Sec. 2 guarantee of trial by jury for criminal matters, the 6th Amendment's requirement of an impartial jury, the 14th Amendment guarantee to equal protection and to due process of law.  Further, each state constitution may provide new routes.

Along with a defendant's right to an impartial jury, due process of law and equal protection is the individual citizen's right to serve on a jury and society's right to have confidence in the fairness of trial verdicts (Art. 4, Sec. 2 and the 14th Amendment both guarantee the privileges and immunities of citizenship for all and the Preamble collectively acknowledges the unification of all Americans).  The pervasiveness and diversity of these rights encourages evaluation in regard to the manner in which the jury pool is drawn to how it may be dispersed if different courts exist in the county to appropriate voir dire to whether a juror is struck for cause to the propriety of  any peremptory challenges.

Perhaps due to the myriad choices, litigants argue and courts rule with tentative, fragile determinations.  Indeed, in the seminal case of Batson v. Kentucky, the petitioner brought his peremptory challenge issue under the 6th Amendment but it was decided under the 14th (to great consternation by both Justices Burger and Rehnquist).  The goal of the case was to stop the government from exercising peremptories in such a way as to effectively eliminate minority members of the community from serving as jurors.  Whose right is that?  The defendant's right to a fair cross section of the community (traditionally a 6th Amendment argument, an argument essentially rejected by the Court) or the juror's right to serve (an equal protection 14th Amendment right not to be excluded from the role of citizens)?  In the plurality, Justice Marshall's concurrence was most profound.  He declared that the only way to end racial discrimination in peremptory challenges is to eliminate them entirely.  Can we get to optimal juries by foregoing the peremptory challenge?

Massachusetts' fair cross section-type argument predates and is cited within Batson v. Kentucky, 476 U.S. 79 (1986). Justice Marshall pointed out its ineffectiveness in eradicating bias as it is too easy to deliver a plausible rationale that does not involve race for any peremptory challenge.  Reaffirming the rebuttable presumption of propriety for peremptory challenges, in Commonwealth v. Scott, the Supreme Judicial Court recently averred that because (a) the defendant did not dispute the "race neutral" proffer by the government, (b) the jury could fairly be considered to represent a fair cross section of the community as constructed, and (c) the judge determined there was no pattern of discrimination, the argument would fail.

The ruling reflects the Sisyphean nature of the peremptory challenge argument.  Justice Marshall even predicted that Batson would exacerbate the problem of bias as the "colorblind" era emerged.  In light of Justice Marshall's carefully considered concurrence, perhaps we can even embrace the current Court's reactionary fundamentalism suggesting that words mean only what they meant in the moment they were written even when they were written with an eye to the future, to growth and to revolutionary change.  The right of individual jurors to decide both the law and the facts, to nullify existing law, to demonstrate mercy was, indeed, familiar to the Framers.  It is this right that they so jealously protected for both the accused and for the greater community.

In our great democracy, there is a place for jury nullification and for permitting the jury to limit the penalties ascribed by the legislature if the people - otherwise utterly divorced from the criminal justice system - find that their representatives have been too harsh.  We must take pains to acknowledge that we are incarcerating too many people, that we are disproportionately incarcerating young African American men, and too often with white juries, that we tend to punish the poor by ensuring their poverty with convictions, and too often with wealthier juries, that the current economic climate distances the poor from the middle and upper classes in increasingly uncomfortable ways, that the language of the Magna Carta regarding judgment of peers was exactly that - nobles judging nobles - that it is time to address both the conscious and unconscious bias in the jury selection process when we review under fair cross section, equal protection, due process and (in Massachusetts) "judgment of peers".  It is time to reconsider representational juries and proportionality in the venire and greater voir dire to eliminate jurors for cause.  And, in exchange we can eliminate peremptory challenges in order to effect fairer trials.

Hardly radical, John Adams himself declared that jurors should reach their verdict as of conscience even if it is in opposition to the direction of the court.  He had great company in this belief.  But, how do we get this jury of conscience, this jury of independence, this jury so willing to stand up for justice that they are willing to sit down to deliberate?   Is it possible that what the Constitution intends and what fairness dictates is really a jury that reflects the community by age, by politics, by race, by ethnicity, by religion, by gender and by socioeconomic status?  Perhaps in places like Massachusetts that provides for judgment by peers the requirement extends to oversample the community as to the defendant's peers, whoever they may be?  If the jury trial was so important that it is included in not only the body of the Constitution, but again in an amendment passed soon after, weren't they trying to tell us something?

As political parties gallop into the homestretch of a tight and often bewildering campaign season, they have so finely tuned their get-out-the-vote effort that they have developed microtargeting algorithms including everything from party affiliation to installation of home swimming pools to magazine subscriptions in order to identify and reach out to potential votes.  Initially, all elections for federal officials was through an indirect vote; for president this is still true.  The drafters of the Constitution, however, directly involved the citizenry in perhaps its most important role, as jurors in judgment of a peer and as a check on all three branches of government.

Given that jury service is therefore more important than the vote, has the time come to use this technology and establish better and more diverse jury pools, improve the jury questionnaire, increase voir dire process, strike only for cause (perhaps with proportionality restrictions), encourage deliberation and debate by allowing the jury to know the potential penalty and provide them with the opportunity to craft law?

Courts have created winding roads that meander without really leading anywhere.  The right of a jury trial is the defendant's.  The right of trial by jury is society's.  The intersection of these rights has the potential to transform democracy in new and brilliant ways by reclaiming what the Framers intended - people freely participating in their own government. 

As we prepare to exercise our vote next week, we might take just a moment to remember that all of us have a duty of citizenry that is not dependent upon advertisements and slogans; it is not dependent on the party in power or the stagnation of our elected officials.  Our duty of citizenry can never be more effectively demonstrated than in jury trials.  To ensure that government of the people, by the people, for the people shall not perish from this Earth, we must seek engagement in all aspects of the configuration of the jury for criminal trials.   If taxation without representation roused our forbears, incarceration without representation should be an alarm clock for us.


 

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

Control Freak

Thinking about controlling precedent brings to mind a sensational case that occurred in Massachusetts well over a decade ago in which a young au pair was accused of murdering an infant in her care.  Her defense team gambled: murder or acquittal.  But, the government sought a lesser included offense of manslaughter jury instruction, a request denied by the trial judge.  Given the choice, the jury convicted the girl of murder.  Able defense counsel moved to have the verdict reduced to manslaughter, which occurred, and the highest court in the state upheld the ruling.   

That famous case birthed the rule that, regardless of which party moves for a lesser included offense jury instruction, if the evidence exists to provide it, the trial court is obliged to provide it.  Indeed, when such scenarios occur, it creates reversible error - the rule is clearly elucidated and there is a serious due process consideration at bar.

Putting aside the science now known about the accusation of "shaken baby syndrome" which calls any verdict against the au pair - and many others similarly accused - into question, the Supreme Judicial Court stated, affirmatively, not only that the lesser included offense jury instruction rule decided in many earlier cases, but that the rule had never been limited to requests by the defendant.  Defense strategy was irrelevant if the government requested the instruction.  The case is controlling in theory alone, however.  Few litigants engender the sympathy that the young au pair had; and courts rarely implement the rule, an unfortunately common phenomenon.

Curiously, not only do courts occasionally fail to enforce their own rules, but sometimes courts state that one case or another "controls"  when the issue is not controlling.  For example, in a matter averring the overly suggestive nature of a police identification procedure, there are two different, and independent, aspects to review': (1) was the decision to conduct the procedure an acceptable one under the circumstances? And, (2) did the police take actions that made the procedure overly suggestive?

The defendant can concede on (1) but argue (2) that the actions taken by the officers turned an already suggestive identification process into one that was so highly suggestive that it violated due process of law.  Despite that, the court may aver that because the elements of (1) suffice, the improper procedure bears no meritorious discussion.  And, the case that outlines the rule in (1) "controls" when, in truth, the case is completely irrelevant to the argument actually made by the defendant. If notice is part of due process of law, then should not defendants anticipate that courts will uphold their own precedent and rule upon the questions presented as controlling law? 

A case titled Escobedo v. Illinois announced that suspects in criminal cases are entitled to counsel before speaking to police officers. The better known version, Miranda v. Arizona distorted the earlier decision.  Justice Goldberg, a Kennedy appointee, authored Escobedo in 1964.  Just over one year later, President Johnson persuaded him to leave the Court and become an Ambassador to the United Nations.  Justice Fortas replaced him.  In order to secure a majority in Miranda, the Court radically changed its position.  Escobedo was decided squarely on Sixth Amendment grounds; Miranda never mentions the right to counsel; it only discusses compelling a defendant to self incriminate under the Fifth Amendment.  

The Court shifted from the right to counsel to the right not to be compelled to self incriminate (a far less protected right - and one less moored in jurisprudence), and the changes to the configuration of the Court (and subsequently to defendants' rights) almost immediately after Miranda had far reaching consequences.  Shortly after the Miranda decision, Justice Fortas left, Chief Justice Warren resigned and they were replaced by Justices Blackmun and Burger respectively.  The questionable basis for the Miranda decision proved its undoing as the Court pulled further and further toward the position that not only does it love confessions, but that it will presume the validity of confessions.  It began to question whether - regardless of the affirmative declaration in Miranda that police must inform suspects in custody of their right to remain silent (and to counsel) - there is a set meaning of the term "custody" and whether a bare minimal recitation satisfies the adequacy of the warning.

Escobedo is the better reasoned and more useful of the two decisions: it made it clear that those suspected of crimes and targeted by police for interrogation are entitled to counsel under the Sixth Amendment.  While it has never been overturned, it has been overshadowed by the bizarre Fifth Amendment curveball of Miranda which is impossible to control: it is difficult to understand where it comes from, where it is going and what exactly it means or what rights it seeks to protect.

Yet, lawyers mistakenly continue to argue for "rights" under Miranda and continue to get blind-sided by courts that genuinely want to uphold convictions.  Courts are comprised of judges - who are human.  This means they harbor biases, fears, concerns about perception by the public, and ignorance of some procedures that occur in investigations.  That is not because they are bad or unwilling to enforce the law or even that they are somehow unaware of the concept of an independent judiciary.  It simply means that they are flawed human beings like the rest of us.

It is, therefore, the burden of the advocate to press for upholding rulings and precedent beneficial not only to the client, but to justice, as a mirror of truth in a fearless and forceful manner.  Further, it is up to counsel to advocate for change when change is appropriate whether through social science research or scientific proof demonstrating our fallibility in the past.

The short judicial career of Justice Goldberg gave us the monumental decisions of Escobedo explaining the breadth and purpose of the right to counsel and Griswold where he argued (in concurrence) that the right to privacy was a right retained by the people without limitation by governmental interference and his forceful dissent in denying a petition for certiorari on the death penalty in Rudolph v. Alabama which would start a trend in Judicial commentary, particularly in regard to capital punishment.  

In an ironic twist, Justice Goldberg embraced the notion of lifetime tenure and an independent judiciary, accepting the freedom to craft thoughtful, meaningful interpretations of our shared Constitution and yet his tenure was one of the shortest of any on the Court.  Not always of precedential value, his decisions compel another look as the Court begins its new term because they challenge the meaning of rights and responsibilities and citizenship in a diverse nation.

Before he was elected, our current president alluded - in one of his most powerful speeches - to our Constitution and its meaning as he discussed race in America.  While we often refer to the great text, "We, the People" (forgetting that the original language listed the various colonies by name in a far more cumbersome sentence that would hardly fit on a commemorative coffee mug) the candidate referred to the idea that from our inception, this nation knew it was imperfect, knew it would struggle to become better and actually strived to become better than it began.  While "we, the people" has gravitas - the goal to form a more perfect union has much more meaning.

Working on a more perfect union necessarily dispels the idea that at a time in our past we were more perfect.  The truth is that we never were but always seek to become so as evidenced in another speech in a different time when American morale had plunged to fearful depths.  As we perfect the union, we must learn from and take from the past ideas and visions that will urge us forward.  Many of those concepts live not only in great speeches but in judicial opinions, concurrences, and dissents.  

Part of the practice of criminal lawyers is to bring forth the fearless decisions, the interesting ones that ask us to look through the same text and see the world in a new way.  Discover what precedent exists and move toward a more illuminated vision of what we can be - together - take control.

Oh, Pleas!

The plea bargain has become a mainstay of America's criminal justice system. See, The Charge posted on 5/24/12.  However, in order to advise a client on the benefits and drawbacks of a change of plea, counsel must know and explain the law surrounding the charge, the potential collateral consequences, and the government's best case.  Once aware of the entire landscape, it is up to the client alone to determine his or her own fate: to go to trial or to change a plea.  That decision is only valid if based upon knowledge, free will and an understanding of the criminal process.
 
As we acclimated to plea changes, we forgot that the right of a jury trial is endemic to our culture, mentioned in the Magna Carta in 1215, and referred to twice in our own Constitution: “[t]he Trial of all Crimes… shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed…” U.S. Const. Art. 3 Sec. 2, and the Sixth Amendment, “[i]n 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…”  Waiving the right to be tried by a jury must be knowing, willing and voluntary, not a routine aspect of processing cases.   

Defendants plead guilty for a variety of reasons, among them are actual guilt, a fear that the consequences of trial would be far greater despite innocence, and bad advice.  If counsel has discouraged a change of plea, and such plea issues against the advice of counsel, it is not a violation of attorney-client privilege to make this information known; indeed that fact should be in the record.

But, that is not what happened in a recent Massachusetts case where a defendant pleaded guilty to offenses for which there was inadequate evidence of guilt.  The recited facts state that the defendant was removed from his home and yelled colorfully at the police; told to calm down or he would be arrested, the defendant continued to "disturb the peace" by essentially declaring that this was his house and that he did not like the police.  Ergo, they arrested him because, apparently, Massachusetts, the Cradle of Liberty, is now an authoritarian state wherein the government can remove a man from his home, encourage a crowd to gather, arrest the man for complaining in front of a group of people, and then have him convicted because "disturbing" a crowd assembled because of police actions and "mouthing off" are now criminal offenses.  The court tortures itself - and decent society - to uphold these convictions for disorderly conduct and resisting arrest - two classic charges claimed by people who, really, should not be permitted to carry guns to work. 

Shockingly, trial counsel let this happen, the government stood by and when the defendant moved to withdraw the ill counseled pleas, courts have upheld this travesty.  The opinion seems to contradict settled Supreme Court precedent, including the most recent cases on errant guilty pleas.  This may be a good time for the Supreme Judicial Court to act.

Defense attorneys must know the law.  They must know the elements of the statute with which their client is charged, they must research case law to understand what would constitute the offense and they must explain this information to their clients in a way the clients can understand.  Given that many involved in the criminal justice system have poor educational backgrounds, addiction and mental health issues, it is incumbent upon counsel to ensure that the client really does understand his rights, the facts and the law before advising on a plea.

Prosecutors must provide the facts upon which they intend to rely.  Massachusetts, and presumably other states, have broad "automatic discovery rules" requiring immediate and continuing discovery of a wide range of evidence.  Beyond automatic discovery, further information may be required before an attorney can reasonably counsel a plea change.  Indeed, principles of due process under the federal constitution require the production of material and relevant evidence to the defense.  

For example, when a Mr. Brady was tried for murder committed during a robbery, the government provided discovery to the defense.  Based on that evidence, Mr. Brady went to trial with a specific strategy: to take the stand, admit his part, explain that another committed the homicidal act, and beg for life in prison in lieu of capital punishment.  In Mr. Brady's trial, though, the jury disbelieved him and opted for death.  What the jury did not know was that the person Mr. Brady accused was also accused by the government...to whom he had confessed his guilt...which information the government failed to give to Mr. Brady or the jury.  When Mr. Brady obtained the confession post-conviction, he asked for a new trial which the Supreme Court ultimately provided for him.

But, Brady v. Maryland was not a singular case; in Mooney v. Holohan prosecutors tried the defendant on knowingly perjured testimony, in Napue v. Illinois, the government failed to correct blatant untruths uttered by their own witnesses, and in Kyles v. Whitley, the government failed to turn over specifically requested police reports and statements indicating that another man had committed the crimes for which Mr. Kyles was serving time.  These were not mistakes; they were intentional deceptions.  Even if the initial failure to disclose was inadvertent, the fight to the Supreme Court indicates a desire to circumvent due process.  In Mr. Brady's case, had he not obtained the evidence, the good people of Maryland would have murdered him-not in one of those heartbreaking cases of misidentification, he was not misidentified - but because a reasonable jury would have sentenced him to life in prison as he requested had they known the evidence kept secret by the government.  In all of these cases, had the defendant chosen to accept a guilty plea instead of taking his case to trial, the fraud would have gone undetected.

In addition to the general law and the government's best case, defense counsel has an additional burden to know, understand and explain interconnected collateral consequences prior to advising on a change of plea.  What other factors must be considered before a plea is knowing, willing and voluntary?  For starters,without apology for the bullet points:

• whether the conviction will affect immigration status; 
• if the defendant is from a different culture, does s/he understand the American criminal process;
• if the defendant does not speak English as a first language, has the native language interpreter sufficiently translated the lawyer's explanations and the client's concerns;
• if the defendant has ever suffered from mental illness or mental infirmity of any kind, does s/he genuinely understand all that is happening within the criminal justice system;
• whether the conviction will hamper or preclude a defendant from legally purchasing or possessing a firearm, an individual right under the Second and Fourteenth Amendments, in the future;
• whether the conviction will terminate a public housing lease;
• whether the conviction will suspend a driver's license;
• whether the conviction will initiate the revocation or suspension of a professional license;
• whether the current conviction will serve to enhance any later convictions.

While the vast majority of criminal cases resolve by means of a guilty plea, it is unlikely that all, or even most of them comport with these requirements to ensure that the guilty verdict reflects constitutional safeguards.   Due to the unreliability of plea bargaining, at least one person has suggested that plea process be reformed to act as something less than guilt. See, Gregory M. Gilchrist, Plea Bargains, Convictions and Legitimacy, 48 AMCRLR 143 (Winter, 2011).  But, even if we retain the very troublesome system as it is, we can improve the practice.

In Massachusetts, prosecutors are obliged to affirm, under the penalty of perjury, that they have satisfied the automatic discovery requirements; counsel must ensure that the certificate of compliance, as outlined in M.R.Cr.P. 14(a)(3), is filed before any plea negotiations occur.  Counsel can and should correspond with the client about each and every element of the offense and the government's anticipated evidence to prove each element.  Counsel can and should correspond with the prosecutor regarding every offer for a change of plea, obtain everything in writing, and provide that correspondence to the client.  Counsel must review potential collateral consequences including not just immigration matters, but all known potential problems resulting from a guilty verdict with the client.  Even these simple steps can improve confidence in guilty pleas.  Through these actions, it may become clear that a guilty plea is not the best alternative for the client and trial or dismissal may be appropriate.

When lawyers are "sworn in to the bar", what we swear or affirm is to uphold the constitutions of the nation and our state.  We, defense attorneys, prosecutors, and judges, denigrate that promise whenever we gloss over the jury trial provisions specified in the Constitution.  It is not that every single case must go to trial; that would be optimal but, sadly, not practical. But, neither should pressure force cases through the system sacrificing justice for efficiency.  

The framework for government in this country mentions criminal jury trials twice and so it is reasonable to presume that this is an important - if not required - provision that deserves respect.  As we look to modifications for that time honored practice allowing for a declaration of justice by an impartial group assembled from the community, we must remember, as Chief Justice John Marshall implored, that it is a constitution we are expounding.  

As we talk about the obligations of government to its citizens and inhabitants, as we discuss individual liberties and guaranteed rights, we defense attorneys have a special obligation to establish as fair and transparent a process as possible when we anticipate a waiver of those precious rights.  Courts will not impose one and prosecutors will not suggest one; defense attorneys are the final buffer between a free society and a police state.  Therefore, it is incumbent upon defense attorneys - the only folks in the entire process mandated to be there - to develop and implement protective guidelines in relation to change of plea proceedings for our clients, our constitutions and our communities.