Stealing Something From the Thief

Stealing is as old as the ages.  As early as Genesis, at his mother's urging, Jacob impersonated his brother Esau to obtain his birthright and fortune.  There's a slight wrinkle in that a hungry Esau may have agreed to the bargain in exchange for food (which did not make him any less angry when reality hit).  And, their father Isaac, tricked into bestowing on one son what he believed he gave to another, let bygones be bygones and never tried to right the wrong.  As it turns out, the birthright was Jacob's destiny and was never intended for Esau in the first place.  So, even though he used trickery, Jacob really did not steal anything.

As ancient as the concept of deception and identity theft is, Joseph Caramadre took the idea, one might say, on a ladder to exalted levels.  He realized that certain insurance annuity documents contained a drafting flaw which allowed the insured and the annuitant to be different parties - and parties who did not have any connection to each other.  By way of context: he realized this in an era of complex financial instruments and a world comprised of  derivative markets.  Indeed, he discovered this at a seminar by the insurance companies seeking sales of this particular product. 

Rather than selling policies to wealthy individuals in retirement, Mr. Caramadre realized that instead of an annuitant/investor and the beneficiary, the roles could be changed to annuitant and investor/beneficiary.  And so, Mr. Caramadre started finding and paying people who had terminal illnesses to become his annuitant.  He paid a fee to people who would be the "measuring life" and bet that the individual would die sooner rather than later.  So, he took his own money as the investment and put it into incredibly risky ventures; if they beat the market, he got the profits but if they fell short, there was a guaranteed death benefit.  It was genius.  And, unlike the sketchy books kept by "the smartest guys in the room" at Enron, this was all transparent, above-board and completely legal.

Nothing gets by these insurance companies and once they had paid him tens of millions of dollars over the course of several years, they caught on to Mr. Caramadre.  Instead of changing the contract terms to require the annuitant to be the investor or the relationship between the annuitant and beneficiary to be something other than "acquaintance", they sued.  And lost.  However, the federal government in its infinite wisdom, charged Mr. Caramadre and an associate with 66 criminal offenses including identity theft, wire fraud and conspiracy.  To be clear; the role of prosecutors is to protect the people.  No person was harmed by any of these contracts: people actually received money they never otherwise would have due to Caramadre's payment for their participation.  The "person" of the insurance companies did not lose money, they lost face.

Mr. Caramadre did not develop this plan in a vacuum.  He was introduced to these annuities by a company trying to make a lot of money from them in a world where people purchased and were encouraged to purchase financial instruments they did not understand.  Mr. Caramadre, despite the grim reaper aspect of all of this, did not do what banking institutions did to their fiduciaries when they sold worthless investments.  The people who signed the contracts were paid a sum of money, they did not forfeit anything that belonged to them.  No one lost anything: the individuals never could have afforded the annuities, the insurance companies wrote the contracts and assumed the risk: that is their business after all.

Not one banking institution or credit default swap salesman has ever been charged for tanking the world economy.  Instead of prosecuting bad guys who got rich while people lost their homes and retirement savings, the federal government chose to go after the one guy who beat the bankers at their own game.  Sadly, facing so many charges, Mr. Caramadre and his associate each pleaded guilty during their trial last week to one count of wire fraud and one of conspiracy. 

It's not the first time the federal government has been on the wrong side of history where theft was concerned.  Two hundred years ago, the United States were at war with England.  The English illegally boarded ships and forced impressment on men working on American vessels.  Indeed, the very idea that foreign powers could enter a ship sailing under a United States flag was one of the causes of the war.  At about that same time, the French were also at war with, well, everyone including themselves, but England was certainly one of their combatants and England ruled the seas.

In this context, French thieves stole a boat near Spain that belonged to American merchants; they transformed it into a warship.  If the newly configured ship were intended for war, it should have sailed up the Atlantic Coast toward Russia, the country France was then invading.  Yet, somehow, the ship docked in Philadelphia whereby its original owners became aware of its existence and sought to reclaim their stolen property.  Putting aside the fact that the economy was in trouble due to massive forfeiture of cargo to the United States Treasury under the Embargo Act of 1808 - and putting aside that this merchant ship fitted with guns was, in all likelihood running goods (Napoleon was in Smolensk, the boat was in Philadelphia; if this were really a warship, the crew was horribly lost).  It's almost the perfect case to assert American sovereignty: an American ship boarded and seized by a foreign powers.  One might think that the victims would be returned their ship.

One would be wrong.  The Supreme Court of the United States (no doubt with some prompting by the other two branches of government desperately professing neutrality in the Napoleonic wars) determined that even though the ship had been seized unlawfully, Napoleon was immune from prosecution. The enemy of my enemy is my friend theory of justice prevailed then as now.  The enemy then was England and her immense Navy.  The enemy today are fraudulent financial instruments that hurt investors.  But, both the Schooner Exchange and Mr. Caramadre's cases are the wrong vehicle to demonstrate their respective points.  Britain's Navy was not defeated: not by the United States in the War of 1812 and not by the French in the the Napoleonic Wars.  Eliminating or regulating unscrupulous derivatives has not even been attempted.  The United States government does not do well when it defies justice in an effort to curry favor with powerful forces.

Mr. Caramadre simply did what is done every day by bankers and insurance companies themselves because the government refuses to curtail the practice.  Instead of going after the parties that genuinely hurt innocent investors, the government has gone after the one guy who legally, transparently, and flamboyantly profited from a drafting flaw; unlike real identity thieves, no one's credit was ruined, no one's life was upended.  Supporting the insurance companies in the face of their own complicity out of disdain for complex financial instruments is like granting Napoleon sovereign immunity for a stealing a ship just because everyone despised England. 

After all, sometimes events only seem deceptive.  Even if Jacob put on the goatskin to trick his father, it could not have been to cheat Esau out of his birthright; God preordained that the elder (Esau) would serve the younger (Jacob).  Indeed, Rebekah, their pious and devoted mother, set the scheme in motion: she urged Jacob to feign his brother's identity to receive his father's blessing; she then aided and abetted him as he sought shelter from relatives while Esau cooled his heels from the power grab.  Even though it appeared to be devious, the outcome would have been no different. 

Like the story of Jacob and Esau, Mr. Caramadre's enterprise was not theft in the sense of taking something that rightfully belonged to another.  It was more of a morality play, but this time with an unwritten ending.  One has to ask: it is just a coincidence that translated from the Italian, "caramadre" means "beloved mother"?

Federalism and Cannibis -How the Ninth And Tenth Amendments Won at the Polls

When Congress overrode President Wilson's veto of the Volstead Act in 1919, it unwittingly launched careers of now notorious criminals.  Federally prohibiting the manufacture, sale and transportation of intoxicating liquor (but not consumption or use for scientific and religious purposes) was an unmitigated disaster culminating with the 21st Amendment in 1933. 

Entire communities of brewers and distillers lost everything to Prohibition and then the Great Depression, bracketed by loss in two World Wars.  The American people protested these ill conceived laws through bootleggers and speakeasies (romanticized now but often dangerous in their time) by unlawfully manufacturing, selling and transporting all manner of intoxicating liquors which had been a legitimate business just moments before.  But, the mostly small, independent commercial producers of beer and spirits could not fight back leaving empty, boarded up buildings in formerly profitable neighborhoods.  The repeal of Prohibition came too little, too late to revive the lost businesses. 

The entire movement in opposition to alcohol would baffle the Colonists and Revolutionaries who imbibed on a regular basis.  Indeed, with no water purification system (or understanding of waterborne illnesses), alcohol was safer to drink than water.  It never would occur to them that any government - state or federal - would seek to restrict intoxicating drink or even medical drugs.  What could be more personal an individual freedom than the choice of what to - or not to - ingest?  

The Volstead Act leaves a legacy in the federal government's war on drugs, a war that may have met its match; the people are fighting back.  The shot heard round the world came this time from Colorado and Washington in ballot initiatives granting legalization (not decriminalization or medical use, but full on treat-marijuana-like-alcohol-and-cigarettes legal).  The federal government is in a tizzy (it's a war, afterall) and so a "conservative" House of Representatives will scramble to figure out how to control state action over a drug that is not known to cause much harm, if any, and has its roots and relatives in our American heritage.  Just let that sink in; those who chatter about principles of federalism to restrict rights will contest those same ideals when those principles enlarge rights.

Industrial hemp is a weed, not terribly unlike its banned cousin, which was used to make everything from paper to fabric to rope for the burgeoning shipyards from the earliest of Colonial American settlement.  Indeed, there are texts indicating that failing to grow this important crop was itself a criminal offense.  While hemp brought American industry to new heights, it did not have a similar effect on the populace as it has no intoxicating properties.  The cannabis associated with smoking and laughing and Jazz and hippies was not widely available until about the time of the Missouri Compromise.  Marijuana may have even gained prominence during Prohibition but was criminalized shortly after alcohol regained its place in polite society.  It is as though the federal government is unhappy unless it is punishing some type of intoxicant.  Today's question is not whether the federal government can enact such laws but whether the federal laws pre-empt the new state laws.

The national prohibition on cannibis has essentially eliminated all commercial growth of hemp despite its long history in this nation and the remarkable qualities of the plant. Undeniably, the people of Colorado and Washington spoke to recreational use of marijuana, but the implications reach far beyond the borders of those states and far beyond their intent.  Their initiatives will necessarily spark - for both liberty interests and commercial concerns - a new conversation about the role of the federal government in conflict with and as constrained by the Ninth and Tenth Amendments. 

Federal drug laws live, for the moment, in the Commerce Clause, permitting even the federal prosecution for home grown plants where states have medical marijuana use laws.  But, the Chief Justice has called this line of argument into question since he did not support the Affordable Care Act under the Commerce Clause.  Indeed, the valorous creativity of the Warren Court's use of the Commerce Clause to ensure equality was always a tenuous and easily challenged argument.  What may be a shield cannot be a sword; federalism, and justice itself, demands the protection of individual liberty as against an encroaching government.

The Ninth Amendment acknowledges that the Constitution does not enumerate all rights, and that there are rights retained by the people. See, i.e. concurrence in Griswold v. CT, 381 U.S. 479, 492 (1965)  Ballot initiatives often express the voice and life of the Ninth Amendment.  Surely the Framers understood a right to the integrity of one's own body including what substances one might ingest and which ones one might refuse.  And, intoxicating drink was certainly prevalent even in the colonies.  It would be difficult to imagine Hamilton or Adams or Madison or Jefferson seeking to micromanage individual's consumption of any particular product.  As to the question of marijuana (or any drug) legalization, it appears have some resonance in the Ninth Amendment.

But, the big guns will be reserved for the Tenth Amendment: the retention of power by the individual states where no such power is delegated to the federal government.  For example, Colorado and Washington will develop some regulatory mechanism for marijuana.  There are privileges and immunities clauses within Art. 4 and the Fourteenth Amendment of the Constitution.  Query whether those in a national park located in one of those states could be treated differently from those in a state park or city sidewalk.  And if there is a difference, who trumps whom?  There are no enumerated powers in the federal constitution in regard to controlling intoxicants; this one should bounce back to the states.  That is, given the flimsy ground upon which the federal drug laws stand, they should bow to state legalization.
 
While the insidious and destructive war on drugs has wreaked havoc on American neighborhoods and entire populations for far greater offenses than recreational use of marijuana, the good people of Colorado and Washington may have started a revolution with their decisive votes.  The results of the ballot initiatives could restore to farmers the opportunity to grow industrial hemp, a plant that, among other uses, has the power to assist America in its quest for energy independence.  And, it could be the catalyst to end federal control over the criminalization of drugs; reverting all power therein to the states or to the people.

Valid, vibrant federalism arguments, such as those mounting in Washington and Colorado right now, can and should thrive.  States ought to be individual laboratories for growth and change and progress providing more freedom than does the federal government.  And, unless specifically enumerated powers rest exclusively in the federal government, it should have no ability to restrict freedoms provided by the states.  That is the greatness of the federalist ideal.  The invidious misinterpretation of the doctrine of federalism, those often self-named "states rights" movements which aim to restrict individual liberties by state action are necessarily doomed to failure as they were 150 years ago.  But, unless the national government will secure and protect all liberty concerns, then marriage equality, broad educational mandates, single payer medical coverage, and even legalization of previously banned substances are and ought to be the province of the individual states.  As the red states and blue states work this out through a purple haze, federalism lights up.

Unabridged: Reservations About the Tenth Amendment and the Right to Vote

One hundred and fifty years ago, Union forces built bridges and began assembling to face Lee's Army near Fredericksburg, Virginia wholly unaware they were about to lose one of the most lopsided fights in Civil War history.  That war is prominent this Veteran's Day as the battles enter their sesquicentennial anniversaries and cinema brings the era into a new realism.  But, also because we are still chasing its ghosts.

Spoiler alert - the Union wins, the Confederacy dissolves and the states in rebellion re-enter the Union with considerable conditions placed upon them.  Among these conditions was mandatory ratification of the Reconstructionist Amendments to the United States Constitution: the Thirteenth Amendment prohibited slavery and indentured servitude, the Fourteenth Amendment defined citizenship and declared equality for all, and the Fifteenth Amendment enfranchised those who had been denied the vote by stating, "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude."  Due to the opposition by the states in insurrection and a general concern about the administration of these mandates, all three Amendments endow Congress with the power to enforce them by appropriate legislation.

So, when Congress first set out to enforce the article in 1870, it did so rather forcefully, in 16 Stat. 140, by authorizing criminal penalties for officials who denied the right to vote based upon race.  In perhaps the first case determining the validity of that statute, Justice Strong (acting as Circuit Justice) upheld convictions in United States v. Given, 25 F.Cas. 1324 (1873).  He explained the constitutional powers of Congress to enforce the Fifteenth Amendment's right to vote (or, more precisely, prohibition of discrimination to vote) through clever analogy.  He asserted that there was no power bestowed upon Congress to enforce the third paragraph of Sec. 2 of Art.4 of the United States Constitution but that legislation enforcing it had been upheld by the Court.  Reasoning that the language in the Fifteenth Amendment was stronger and more directed, congressional action - even to criminal penalties - was appropriate.

Art. 4 of the United States Constitution originally affirmed the permanence of servitude for anyone born into slavery who was not granted manumission.  It was silent in regard to enforcement.  Yet, Congress acted twice with the Fugitive Slave Act of 1793 and then again in 1850 creating criminal penalties for those seeking freedom and remedies for those seeking to reclaim their "property"; both times the Court upheld fugitive slave legislation.  In this punctuated vein, Justice Strong upheld Congress' authority and power to enforce the Fifteenth Amendment via criminal sanctions. 

The Givens case mentioned the general powers of the states to enact rules and regulations for voting but remarks,

But the recent amendments have introduced great changes. If prior to 1870, when the fifteenth amendment became a part of our organic law, the right of a slave holder to the ownership of his fugitive slave in any state of the Union, and his right to delivery of such slave, was a right which congress was authorized to enforce and protect by penal legislation against individuals obstructing it, much more are the rights secured, recognized, and guaranteed by the thirteenth, fourteenth, and fifteenth amendments objects of legitimate protection by the law-making power of the federal government. Those amendments have left nothing to the comity of the states affecting the subjects of their provisions. They manifestly intended to secure the right guaranteed by them against any infringement from any quarter. Not only were the rights given—the right of liberty, the right of citizenship, and the right to participate with others in voting, on equal terms, without any discrimination on account of race, color, or previous condition of servitude—but power was expressly conferred upon congress to enforce the articles conferring the right. The second section of the fifteenth article ordained that ‘the congress shall have power to enforce this article by appropriate legislation.’ Manifestly this section was adopted for a purpose. It must be so construed as to confer some effective power.

United States v. Givens, 25 F.Cas. at 1327 (emphasis added).

Fast forward to 2012 where the Court granted certiorari in the matter of Shelby County, AL v. Holder to determine whether Congress exceeded its authority under the Fourteenth and Fifteenth Amendments when it reauthorized a section of the 1965 Voting Rights Act requiring certain localities with a history of racial discrimination to obtain preauthorization from Congress before they changed their voting rules thereby violating the Tenth Amendment and Art. 4 of the Constitution. The Tenth  Amendment declares that powers not specifically designated to the federal government nor prohibited to the states would be reserved by the states or the people.  Art. 4 avers that citizens of each state would enjoy the privileges and immunities of citizens in the several states...it also was the original home of the guarantee that a slave would be a slave no matter where he resided leading to the ill considered decision in Dred Scott v. Sandford announcing that no African American was a citizen anywhere in the United States.  The grant of certiorari under these two sections of the Constitution should send shivers down the spines of every American.

In 1873, Justice Strong- appointed by President Grant (the same person who accepted Lee's surrender at Appomatox Courthouse) - affirmed that the Fifteenth Amendment radically changed the relationship of the states to the federal government.  He lived through the ratification period and the emergence of liberty in Reconstruction and was quite convinced that the Tenth Amendment did not apply to enforcement of the Fifteenth.  By granting certiorari the current Supreme Court is opening up these old wounds of war that have scabbed over and over with time and struggle through a Tenth Amendment vehicle that ran out of steam by 1873.

Following the war that claimed 700,000 American lives, countless lynchings, intimidation, brutal violence, outrageous poll taxes and literacy tests continued to deny the vote.  Undeterred by this irrational savagery, courageous, powerful movements of the 1940's, 50's and 60's persisted.  Finally President Johnson and the heroic 89th Congress passed the Voting Rights Act of 1965.

The Reconstructionist Amendments were war reparations reserving little ambiguity about their meaning, purpose and design.  To ensure their life in perpetuity, they reformed the entire relationship between the individual states and the federal government granting significantly more power in the federal government than initially occurred (a point Madison would have loved) and left nothing to comity.  These Amendments were not a compromise - they were an affirmation intended to instill the promise of the second sentence of the Declaration of Independence upon all people by redirecting certain powers to Congress.  That change is permanent. 

Together, as a nation, we have united to defeat the Nazis, we have struggled with the inequities of our first compromise and have emerged stronger with each member of society fully enfranchised, we have pulled and strained against the notion of liberty to a point where we are ensuring civil rights at the ballot box (which has its drawbacks, but is a remarkable achievement), and we have just affirmed, by popular (and our quirky electoral) vote that we do believe in the promise initially embraced by the Enlightenment that emboldened our forbears.  That unified nation - the one that reveres our brave armed forces on this Veteran's Day- began with the end of the Civil War and is continually evolving, in the hopeful words of James Madison, in order to form a more perfect Union, establish justice and ensure domestic tranquility.

We ought not and cannot and shall not permit the frayed edges to unravel this great nation. Congress is now elected by popular vote; it has deemed that certain localities must receive approval before changing voting laws; the unelected Courts must accept this under the Fifteenth Amendment which, by its own terms, denied states their prior powers under the Tenth Amendment.  Even though it took Congress 100 years to act, separation of powers assures that any and every action to enforce the Fifteenth Amendment shall be upheld. 

The mournful magnitude of 20,000 casualties in Fredericksburg 150 years ago was not in vain.  Our tragic division united us; and in that unification we agreed - however reluctantly by some - to welcome all Americans as equals.  Every vote counts and if takes Congressional approval to so ensure then that is a tiny price to pay for all of the blood that has spilled over the unalienable right to take part in one's own government. 

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.