The Devolution of Individual Liberties on a Case by Case Basis

The Fourth Amendment prohibits unreasonable searches of people, papers, possessions and places of residence. To establish reasonableness, the Amendment requires warrants to be both specific and based upon probable cause.   The question that arose in Missouri v. McNeely, SCT Docket No. 11-1425, was whether blood alcohol content in a driving under the influence case established a per se exclusion from the warrant requirement.  That answer is "no" but the result is a bit unsteady.  True understanding of the issue requires a bit of background.

The first case really addressing the invasion of a person's body by law enforcement is Rochin v. CA, 342 U.S. 165 (1952).  In that case, the Court concluded that the use of a stomach pump to remove potential evidence from an individual shocked the conscience violating principles of due process of law.  But, the history of that case must be understood in order to grasp the blase attitude of the Court in its decision in McNeely.  In People v. Rochin, 101 Cal.App.2d 140 (1950), the case overturned in Rochin v. CA, the California Court of Appeal found that the police broke into a man's house, asked him to answer a question he need not answer, watched him swallow two capsules, handcuffed him, transported him to a hospital and had his stomach pumped...for 2 morphine pills and a 60 month jail term...YET...because California did not accept the exclusionary rule, the Court of Appeals was bound by precedent to uphold the conviction.  The decision was scathing against the actions of the police, the ethics of the physician who conducted the stomach pump, and the lack of an exclusionary rule in California. 

Although the California Supreme Court refused to hear the case, two of those justices wrote powerful dissents stating, among other things, that police when left to their own devices cannot be trusted.  The two justices waxed poetic about the history, meaning and necessity of the specific warrant requirement and of the absolute need for the exclusionary rule in order to compel police to comply with the laws they, themselves, are charged with enforcing.  One dissenting judge even declared,

We are told by our national leaders that a state of emergency now exists throughout the world-that our liberties are in jeopardy-that to preserve those liberties we must unite with other free nations of the world in establishing the most potent military force of all time to resist totalitarian aggression. What are these liberties which are threatened? Is not the right of privacy, guaranteed by the above mentioned constitutional provisions, one of those liberties? There can be no question that the right of privacy is one of these fundamental rights, guaranteed by the Bill of Rights-the charter of our civil liberties. Could anyone imagine such right being any more ruthlessly violated under a totalitarian regime than it was in the case at bar? It makes little difference whether the minion of the law who perpetrates such outrages has the official title of commissar, gestapo, sheriff, policeman, constable, game warden, or whatnot, the violation of one's right of privacy is just as deplorable. Merely to say that what the officers did in this case, was wrong, is not enough-they will do it again and again if the courts continue to hold that the evidence they obtain by such unlawful means may be used in criminal prosecutions.

This was 1950.  Those judges were the finest example of what the Framers hoped for with an independent judiciary.  No doubt, this led to the acceptance of the certiorari petition.

In Rochin v. CA, which predates the incorporation doctrine, the Court reversed under the 14th Amendment Due Process Clause.  The best thoughts in that decision emanate from the two concurring opinions: of Justice Black - who called the amorphous nature of due process of law into question, concerned about its vagaries and demanding the incorporation of the Bill of Rights under the 14th Amendment; and Justice Douglas who remarked, "I think that words taken from his lips, capsules taken from his stomach, blood taken from his veins are all inadmissible provided they are taken from him without his consent. They are inadmissible because of the command of the Fifth Amendment." Rochin v. CA, 342 U.S. at 179 (Douglas, J. concurring).  To these Justices, this was a clear violation of the right not to be compelled to bear witness against oneself.

After Rochin, the Court decided the case of Breithaupt v. Abram, 352 U.S. 432 (1957).  Mr. Breithaupt was convicted of involuntary manslaughter after he caused an accident by driving erratically.  Injured and unconscious, at the hospital, a police officer directed a physician to draw blood which was then provided directly to the officer who had it tested at a police lab.  The results, indicating a high blood alcohol content, were admitted at trial. 

This did NOT shock the conscience of the Court as it was not brutal or offensive.  And, the majority went into a long description of the scourge of alcohol related deaths on the highway as reason for extreme measures.  It was 1957.  The highways had just been invented but airbags had not.  The dissents did not disagree with the problem of dangerous highways and inebriated drivers- merely the Court's role in the application of solution.  The whole point of due process is to remove certain rights from the reach of law enforcement...such as sticking a needle into a fellow human being in order to extract bodily fluids.  The dissenting justices correctly saw no difference between a stomach pump and a blood draw; no difference between the scourge of drugs and that of drunk driving.

Next came Schmerber v. CA, 384 U.S. 757 (1966) and perhaps the most remarkable aspect of the case is that by the time Mr. Schmerber was in the hospital arrested for driving under the influence, he already had a lawyer - who told him not to consent to a blood draw...so he did not consent and yet a doctor (allegedly treating him for his injuries) at the behest of a police officer drew his blood and gave it to law enforcement for analysis.  The Court found nothing wrong with this picture; indeed the majority opinion made up - with no supporting facts - that the police officer felt he had inadequate time to obtain a warrant and then with the stroke of a pen sanctioned police officers to order physicians to draw blood from suspects.

Again, the dissenters charged back: Justice Warren reiterating his dissent in Breithaupt and Justices Douglas and Black reiterated that compelling an individual to permit extraction of his bodily fluids is a violation of the 5th Amendment.  Indeed, they illustrate that the notion of "testimonial" and "communicative" evidence as a touchstone for acting as a witness against oneself has no foundation in precedent.  As to the 4th Amendment analysis, Justice Fortas even remarked in dissent that extracting blood by the state, particularly over protest, amounted to tortious violence.

Onward to Missouri v. McNeely where the Court remarkably combines all of the worst aspects of each of the prior cases to come to no real conclusion regarding the warrant requirement for extracting blood from one suspected of driving under the influence.  The Court ignores the significance of the Breithaupt case where Mr. Breithaupt was not only suspected of driving while inebriated, he killed people.  He was prosecuted for involuntary manslaughter, not driving under the influence.  The blood extracted from him while he was unconscious may or may not have influenced the guilty verdict.  But, once convicted, he did not even appeal.  His case came in through post-conviction habeas corpus, as an afterthought which may (or may not have) influenced the state and then the federal courts.

These massive procedural and factual differences were lost on the Court - they could not see the slippery slope and so slid down blindly.  Putting aside that appellate courts are not concerned with guilt or innocence, the other cases, Rochin and Schmerber - and McNeely - were prosecutions for the sins of drugs and drink and all came up on direct appeal.  They were policy-driven and not crime driven cases.  No one was hurt and nobody died.  Rochin was arrested in 1949 for morphine pills - the tactics were horrific and for what?  For a sixty day misdemeanor sentence.  In Schmerber, while the defendant was injured, no one else was involved.  He refused to blow into a newfangled Breathalyzer test (and his refusal entered in evidence without objection - the reason that 5th Amendment claim was rejected by the Court).  And, the purpose of the driving under the influence laws had been accomplished - he was off the road and would be for some time for the refusal of the breath test.  Still, he was more like Mr. Rochin and less like Mr. Breithaupt; but not to the Court, now bent on evidentiary science to prove guilt rather than constitutional principles to protect liberty.

By Mr. McNeely's case, all of the rules had changed: uniform rules on blood alcohol content came about due to federal funds for highway development and maintenance wherein Congress would only disperse funds to states that criminalized driving with blood alcohol content of .08 or higher.  That is, there is no magic number that indicates impairment - simply one Congress could agree upon before handing out money.  Breathalyzers became commonplace by the 1980's and are far less invasive: most states suspend licenses of anyone who refuses to submit, regardless of conviction.  Video is ubiquitous so that officers can film all of the roadside tests for view by a jury - or by a magistrate to issue a warrant for a blood draw.  And, communication has sped to the point of instantaneous connection wherein some states have developed a warrant procedure via email or Skype.

So, instead of walking through the history and rationale even of Breithaupt (where no other means had been developed to test blood alcohol content and the actual offense involved death), and revisitng the wisdom of Rochin, the Court veers into statistics and popularity of certain techniques - a course proper for a legislature, not a Court.  It then merely claims that there is no per se exigence related to driving under the influence and if a warrant can be obtained it should be...but if it's too much trouble, then it's not really a big deal.

At the same time, the Court acknowledges that most states have a warrant requirement and indicates that there are better, more consistent results with the warrant requirement and so obtaining and executing a warrant for a blood draw improves law enforcement overall.  Even though the results are more fair and less challenged when the police establish probable cause and present that to a detached magistrate for a ruling - and even though this enhances due process of law - the Court refuses to require it.

The McNeely decision splits up like this: Justice Sotomayor joined in full by Scalia, Ginsburg and Kagan makes this wishy-washy-cop-can-use-his-judgment-to-get-or-not-get-a-warrant determination and there is nothing inherently exigent about a "routine" driving under the influence case so the totality of the circumstances will dictate exigence.  In direct opposition is Justice Thomas who dissents (with a hypothetical about police watching a man carrying bundles of marijuana to a bonfire; it makes no sense but it is funny, though not intentionally so) by declaring that all driving under cases establish exigent circumstances to draw blood - no warrant, no problem.  Justice Kennedy joins the majority in part but really limits his decision to the statement that always dispensing with a warrant requirement is inconsistent with the Fourth Amendment.  

The most interesting - and bizarre - opinion is of the concurring in part and dissenting in part Justices Roberts, Alito and Breyer who desperately want to make a special exception for driving under the influence that would swallow the warrant requirement (which Justice Thomas just comes out and says) but they just...can't...get...there.  So, they like this idea better: driving under the influence presents presumptively exigent circumstances unless the police officer feels that he might be able to get a timely warrant.  They provide the examples of exigence and equate the need to extract blood from a lone driver pulled over for erratic driving to any of the following circumstances: a burning building (where police go in to SAVE people) or hot pursuit (where police are seeking to LIMIT damage of fleeing felons) or like having information about an injured person and entering a home to assist her.  That is NOT what blood alcohol content evidence is like at all.  It is not an exigent circumstance - it is simply very, very good evidence to convict someone for driving under the influence that dissipates over time.  But, investigating a crime and gathering evidence is not a reason to dispense with the Constitution.

In "routine" driving under cases, the refusal to blow into a breathalyzer or have a blood draw is enough, in most if not all states, to suspend a driver's license for several months.  Whether or not there is a conviction, that might be enough to keep the roads safer and wake the individual up to the potential danger involved in impaired driving.  And, isn't that the point of the policy?  No one is injured, no buildings are burning and no one is in further danger.  Taking blood under this rubric is much, much more like Rochin than it is like Breithaupt.   A plausible argument could be made that Mr. Breithaupt's treating physicians needed to draw his blood since he was unconscious and perhaps in need of more profound care requiring the medical personnel to know what was in his system to know what drugs not to give him.  Not perfect, but plausible.  All of the other cases involve police officers directing civilians to invade another person's body for evidence of a suspected crime where no one else was harmed - and the civilians DOING it with no court order - which is just mind-boggling, and terrifying, when one thinks about it.  There is not a chance that the Framers - who fought against the presence of an authoritative police state - intended this result.  It is just wrong.

The correct decision is the one lamented in the first Rochin case; the one where the frustrated judges adhered, kicking and screaming, to irrational precedent, practically begging the legislature to advance an exclusionary rule - and admonishing the tactics of the police and the ethics of the physician who pumped the defendant's stomach.  They waxed poetic about the role of government and the rights of the citizen.  Their eloquence persuaded, no doubt, the Court to take the certiorari and reverse the conviction out of sheer horror that the police could barge into someone's home and haul him out in handcuffs to have the contents of his stomach pumped into a bucket so they could prosecute him for essentially being a drug addict.  

The voices of the great Justices Douglas and Black harken to us to dispense with this idiocy that courts are here to enforce the will of the legislature or popular sentiment.  Courts are here to enforce the constraints of the Constitution whether people like it or they do not, whether it makes a police officer's job easier or it does not, whether it forces legislators back to law drafting or it does not.  Courts are here to protect individual liberties from the will of the masses.  That is exactly why Article III judges were given lifetime tenure.  

McNeely is a worthless non-decision that makes no change for the rights of individuals.  It does not enforce a warrant requirement to extract bodily fluids from a fellow human being.  It does not review the rationale behind any of the prior cases and reverse the misbegotten findings that blood is not testimonial in the same way that putting on a shirt is not testimonial.  It does not  venture into the meaning and purpose of being secure in one's person from an overeager government official.  

Recently, the Court ruled that it was trespass for drug sniffing dogs to poke around a yard thus requiring a warrant for that activity.  In McNeely, the very same Court ruled that it was NOT trespass for the police to order a civilian to perform a needless medical test by placing a sharp object into that person and - in the words of Justice Douglas - bloodletting.  Is there any more clear invasion of privacy than literally entering a body and removing its substances?  

This idea that the results of the blood test are somehow not testimonial, too, is laughable: asking someone to walk a certain way or put on a shirt is not the same as forcing him to sit still while a medical professional (whom he can now no longer trust to assist him in any medical treatment as the physician has become an agent of the government) draws his blood for the sole purpose of prosecuting him.   As Justice Black remarked, "[i]t is a strange hierarchy of values that allows the State to extract a human being's blood to convict him of a crime because of the blood's content but proscribes compelled production of his lifeless papers." Schmerber v. CA, 384 U.S. at 775 (Black, J. dissenting). 

The Court had the chance to do something profound, something grand, to restore so many rights taken away while promoting disastrous policies prohibiting alcohol and drugs; it could have required a warrant for every single medical invasion; it could have made a warrantless entry into a body presumptively unconstitutional as it does for entries into homes; it could have concluded that bodily fluids were encompassed in a privacy sphere requiring either the prohibition of use as testimonial evidence when taken by compulsion or a directive that due process requires significant protections to shield individuals from indignities and affronts to bodily integrity. Instead, it left everything in the hands of the police.  Not only does this result fail to provide any guidance, it is without question, the exact opposite of what Framers intended.

Sound of Silence

In human intercourse the tragedy begins, not when there is misunderstanding about words, but when silence is not understood. - Henry David Thoreau

This week, in Salinas v. Texas, the Court will ponder whether the prohibition of being compelled to bear witness against oneself is, under all circumstances, a right to remain silent. Almost half a century ago, frustrated and appalled by years of studies demonstrating police brutality both physically and psychologically, the Court sought, “a protective device to dispel the compelling atmosphere of the interrogation.” Miranda v. AZ, 384 U.S. 436, 465 (1966). In Miranda, the Court explained that if the police propose to interrogate a person, they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him PRIOR TO any interrogation. The fundamental right not to be compelled to be a witness against oneself harkens back to the 1600’s, was instituted in England through popular opinion and societal practice, ultimately led to the demise of the Star Chamber, carried over to the Colonies and is a bulwark of American jurisprudence.

Except when it’s not.

The late Chief Justice Rehnquist referred to the warning requirement in Miranda as a “constitutional rule” rather than a right - the tension in the constriction on the Miranda requirements and waiver of the warning emanates from the notion that it is more important to get confessions than it is to protect individual liberties. Miranda focused on the right to remain silent by safeguarding it with a prophylactic warning of the "right" to the presence of counsel at the interrogation. In Edwards v. AZ, 451 U.S. 477 (1981), the Court lasered in on this right to counsel: “the decision below misunderstood the requirement for finding a valid waiver of the right to counsel, once invoked.” Id. at 484. Not only is the right to counsel nowhere in the Fifth Amendment, but the concept of a right existing solely because it is invoked and being essentially waived if it is not invoked is a bizarre mutilation of the very foundational aspect of a "right" in the first place.

We need not “invoke” our right to free speech in order to protect it; we need not “invoke” our right to be safe from excessive bail; we need not "invoke" our right to bear arms. But, we need to “invoke” the right not to incriminate ourselves - and not just invoke - but do so unambiguously. Berghuis v. Thompkins, 130 S.Ct. 2250 (2010). Once the individual invokes the right to remain silent, the authorities MUST cease all questioning.  If the invocation is for the right to the presence of counsel, all questioning must cease until counsel arrives.  And, the invocation itself of either the right to remain silent or the request for a lawyer cannot be used against the defendant. Doyle v. Ohio, 426 U.S. 610 (1976). The problem with the "right to remain silent" inherent in Miranda is that it has been couched in this awkward rule that has been diminished over time. The right itself is not to be compelled to bear witness; not an invocation of silence.

It is fairly well accepted that warnings must be provided in custodial settings (although the concept of custodial is fairly narrow). It is equally accepted that most settings are not custodial (even if they are intimidating and exactly the circumstances condemned by Justice Warren in Miranda) and so no warnings are required. From the Court's view, “[v]oluntary confessions are not merely “a proper element in law enforcement,”, they are an unmitigated good,” ‘essential to society's compelling interest in finding, convicting, and punishing those who violate the law.’ Maryland v. Shatzer, 130 S.Ct. 1213 (2010).

But, silence is another story altogether. In Raffel v. United States, 271 U.S. 494 (1926), the defendant was convicted at a trial in which he did not testify; that conviction was reversed and the defendant testified at his retrial. Over objection, the government impeached the defendant with his prior silence as being inconsistent with his testimony. The Court stated, without deciding, that if the defendant had not taken the stand in his second trial, his silence in the first would be of no probative value. But, once he took the stand, he opened himself to all lines of impeachment; "[t]he safeguards against self-incrimination are for the benefit of those who do not wish to become witnesses in their own behalf, and not for those who do."

The Court upheld its reasoning in Raffel in Grunewald v. United States, 393 U.S. 391 (1957), but averred that a defendant who had invoked his Fifth Amendment privilege when called before a Grand Jury should not be cross-examined on that fact because its probative value as to credibility was outweighed by the prejudice of the jury hearing that fact...even though he chose to become a witness in his own behalf. A similar due process analysis governed the case in United States v. Hale, 422 U.S. 171 (1975) where, upon the provision of Miranda warnings, the defendant remained silent and then testified at trial. The Court eloquently explained the vagaries of silence and concluded - in its supervisory authority over an evidentiary issue - that "the probative value of respondent's pretrial silence in this case was outweighed by the prejudicial impact of admitting it into evidence." Id. at 173.

In Doyle v. Ohio, 426 U.S. 610 (1976), the government argued that while silence did not necessarily implicate guilt, it was necessary to give the jury the full picture of the events. The Court disagreed, extending the decision in Hale by alluding to the Miranda warnings and declaring, "while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." Id. at 618. The Court held that the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.

To keep it straight: the Fifth Amendment prohibits compelled self-incrimination. In an effort to curtail police brutaility and psychological manipulation resulting in lengthy interrogations and questionable confessions, the Court required officers to inform people in custody of this right. But, the right existed prior to Miranda and it exists for all people whether in custody or not. As Justice Marshall (who, as U.S. Solicitor General argued in opposition in Miranda) explained in Hale, silence is ambiguous. Therefore the use of silence to suggest guilt or recent fabrication is a violation due process. Unpacking that - the reason the Fifth Amendment exists is that no one can be compelled to be a witness against himself whether tacitly or vocally. Silence itself is an exercise of that right and, therefore, implying that silence means one thing or another offends the notion of ordered liberty BOTH because the individual need not speak in the face of an accusation AND because a failure to speak is hardly the equivalent of guilt thus use of silence for any purpose is not specifically a violation of the Fifth Amendment's right not to be compelled to be a witness against oneself, but rather because it offends due process of law.

The Miranda decision is utterly flawed - primarily for concocting an imaginary right to counsel under the Fifth Amendment which does not exist and for insulating the right not to be compelled to bear witness within a notion of the right of the presence of counsel without ever saying that the right to counsel under the Sixth Amendment and the independent right to counsel under the Fourteenth Amendment attaches at the time of accusation - but it is unequivocal in its sincerity and its purpose. The decision talked about ALL statements, not just inculpatory ones but also the exculpatory and neutral ones that are constantly turned on their heads when taken out of context and determined that these, too, should be excluded from the jury’s consideration when they are the product of interrogation.

The case was not about silence - it was about coerced confessions. Interestingly, Miranda himself was retried without the use of his confession, reconvicted, received the same sentence minus good time, served 11 more years and was killed by a knife wound shortly after he was released from prison at the age of 34. A suspect was arrested, provided with the Miranda warnings, invoked his right to remain silent, was released from custody, fled the state and the homicide of Ernesto Miranda in 1976 remains unsolved today.

But, part of the reasoning in both Hale and Doyle involves the idea that, having been informed of the right to stay mute (thanks to the requirement of Miranda for all those in custody and not otherwise free to leave), one accused is keenly aware of the right and therefore may heed the caution to remain silent for countless reasons. A case to be argued this week, Salinas v. Texas, asks whether someone not in custody and therefore not warned under Miranda can have his silence used against him at trial.

This stroll down memory lane should heed the obvious answer: the right predated Miranda whether people knew about it or not; silence can equally indicate guilt or innocence or a mind wandering off to remember groceries: it is not indicative of anything. While it is true that no person shall be compelled to be a witness against himself in a criminal case and silence is not bearing witness in a technical sense, the rationale for excluding silence is one of due process of law. Virtually all police questioning is a form of interrogation discussed in Miranda. The litigation post-Miranda concerns essentially whether or not the police were required to provide warnings before hearing a confession, usually with the conclusion that the confession of the guilty is, for lack of a better term, more probative than prejudicial regardless of the warnings.

Conversely, if the government were permitted to cross examine on the defendant's prior silence - whether or not he was in custody and whether or not he had been warned that he had a right to remain silent - in order to ensure that silence was not misconstrued as guilt, it would compel an explanation of that silence which would force the individual to be a witness against himself and that next step - the explanation of the silence more than the ambiguous silence itself - is what offends due process of law. The Court acted in a supervisory role over an evidentiary - not Constitutional - matter in order to prevent an unfair trial when it decided that prior silence cannot be used to infer guilt or recent fabrication.

The Framers intended an accusatory system of criminal jurisprudence where no one accused of a crime would be called to the stand by the government - if a police officer asks a suspect a question and the suspect answers, the officer can testify to that answer as an admission of a party opponent - which is why the officer has to explain that the individual in custody need not speak with him and may have the assistance of counsel prior to any interrogation. The Court concocted a difference between a suspect and an arrestee where only the arrestee must be told of his rights because, in theory, the suspect is free to leave.

If he is free to leave then he is fully at liberty to exercise all of his Constitutional rights, including not bearing witness against himself or simply walking away. If he is not free to leave and exercise all of his rights, then he is in a custodial setting and must be provided with Miranda warnings at which time his invocation of rights cannot be used against him. Either way, fabricating a reason for his silence in the face of a question - or even the comment that he does not want to speak to the police - or that he wants a lawyer present - violates due process of law. And, if only those formally arrested and "entitled" to a recitation of their rights are deemed to be permitted to invoke their rights with impunity, then the suspects who have not been so informed are similarly situated and yet subject to unequal protection of the law, also in violation of the Fourteenth Amendment.

Although well intentioned, Miranda has proven itself to be a disaster. The prior decision, Escobedo v. IL, 378 U.S. 478 (1964) which explained that an “accused” in a “criminal prosecution” is anyone who is the target of the police - when the police focus their investigation on one person and there is no longer a general investigation, but rather an intention to secure a confession through the means of interrogation, that person is the accused. And that person is entitled to counsel. No formal custody, no warnings versus failure to warn. Just a lawyer whose job it is to enforce his due process rights as the guiding hand of counsel as so elegantly phrased in Powell v. AL, 287 U.S. 45 (1932) another case decided squarely and without apology on due process of law.

Had the Court stayed on that path without the Miranda diversion, Salinas would be a simple case to decide; he would have had a lawyer with him for this conversation with the police and, in all likelihood, he would have remained utterly silent in the face of the accusations and the government would bear the burden of proof of guilt beyond a reasonable doubt with fair evidence...just like the Framers intended.

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.

An Uncertain Remedy: The Loss of the Speedy Trial Right

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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