June, 1992 Volume 14, Number 4

THE ADVOCATE

The Department of Public Advocacy’s Journal of Criminal Justice Education and Research

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20th Our Specialty is Criminal Defense Litigation Anniversary The Kentucky Department of Public Advocacy DPA is a state-wide public defender program thai was established at the recommendation of Governor by the 1972 Kentucky General

. Assembly. There are over 100 full-time public defenders in 16 offices across the state covering 40 Department of Public . Advocacy counties. Another 250 attorneys do pail-time public defender work in 80 of Kentucky s 120 lies. EVA is an independent agency located within the state’s Pmtection andRegulation Cabinet for administrative purposes. A Public Advocacy Commission oversees the Department. Yearly, DPA represents In excess of 101,000 poor citizens accused of crimes for offenses ranging from DU! to 1972-1992 capital murder. Day in and day out our attorneys and staff bring life to the individual liberties guaranteed by our and Kentucky Constitutions. The Kentucky Department of Public Advocacy is Kentucky’s statewide FROM THE EDITOR: public defender program dedicated to providing high quality legal repre We see ourselves as standing out in all of history as a people who cherish and protect sentation for Kentucky’s citizens freedom more than any other people. Our individual freedoms are insured through who are poor and accusedof commit our Bill of Rights of our United States Constitution and subsequent constitutional ting a crime. amendments like the 14th amendment with its due process and equal rights, and through the Bill ofRights of our . December 15, Over 101,000 Kentucky citizens are 1992 is the 201st Anniversary of the United States Bill ofRights. September 28, served by the Department each year 1992 is the 101st Anniversary of the Kentucky Constitution’sBill ofRights. in an effort to insure advocacy root ing out injustice. SPECIAL RECOGNITION ANII A LIBERTY RESOURCE The Advocate is a bi-monthly publi This very special issue of our magazine celebrates these defining values, reminds us cation of the Department of Public of the historical reasons for the development of these precise individual protections, Advocacy, an independent agency and brings together rich resources and thinking for current and future use by within the Public Protection and Kentucky’s criminal justice system and by Kentucky’s leaders and teachers. We Regulation Cabinet. know of no current Kentucky resource of this magnitude which brings together so much information on our liberties. In addition to our regular criminal justice readers, Opinions expressed in articles are this issue of our magazine goes to every Kentucky school, over 1,000. Hopefully, it those of the authors and do not nec will be used for many years as a ready resource for our education system. Together, essarily represent the views of DPA. we need to work to remind ourselves and to remind the future beneficiaries and iniplementers of the origin and importance the guarantees of our fundamental freedoms. The Advocate welcomes correspon dence on subjects covered by it. If WHEN IS LIBERTY MOST AT STAKE? you have an article our readers will find of interest, type a short outline or The raw power ofgovernment vs. a person’s liberty takes on its most dramatic battle general description and send it to the when the state, through a prosecutor, seeks to imprison or kill a fellow citizen for Editor. conduct claimed to be criminal. The extent to which that criminal process is fair is the extent to which we really liberty in our society. Copyright © 1992, Department of Public Advocacy. All rightsreserved. WHO IMPLEMENTS OUR RIGHTS? No part may be reproduced without written permission from DPA. Per Rights on paper are meaningless. They must be put into effect by someone. A criminal mission for separately copyrighted defense attorney or a public defender stands representing a citizen-accused against articles must be obtained from that the state’s desire to seize the liberty or life of one of its own. Defenders are the persons copyright holder. who implement the Bill ofRights, perhaps more than any other person in our society, when they stand up and defend an individual against the power of government. Let’s EDITORS recognize this, appreciate it, and remind others of how much we appreciate those who are willing to stand up for the poor, the outcast, the marginalized, and even the Edward C. Monahan, Editor 1984 - Present guilty and defenseless. The degree to which the state can take liberty from one of the Erwin W. Lewis, Editor 1978 - 1983 least of us is the degree to which our real liberty is at risk. As Martin Luther King Cris Brown, Managing Editor, 1983 - Present Tona Rhea, Graphics, Layout & Design has reminded us in his Letter from the Birmingham Jail, "Injustice anywhere is a threat to justice everywhere." Sometime this year pat a Bill ofRights patriot on the Contributing Editors back and thank them for fostering our freedoms. The liberty we enjoy is a product of their efforts. Linda K. West west’s Review Allison Connelly Post-Conviction PRODUCED THROUGH MUCH GENEROSITY Steve Mirkin Death Penalty Donna Boyce 6th Circuit HighlighLs Ernie Lewis Plain View This issue is published through the enormous generosity of two donors: 1 an Dan Goyette Ethics individual who prefers to remain anonymous, and who was attracted to donating Rob Riley in the Trenches $7,500 because of the special nature of this issue and its distribution to Kentucky’s David Niebaus Evidence Dave Norat Ask Corrections schools; and 2 The Kentucky Bar Foundation which has given DPA a $2,800 grant. Mike Williams F.Y.I. The Kentucky Bar Foundation is committed to improving the administration of Barbara Sutherland Infonnacion Resourcc Justice, educating the public about the legal system and enhancing the image of the profession. Its officers are: Carroll M. Redford, Jr., President; Robert W. Kellerman, President-Elect; William]. Kathman, Jr., Vice President; Thomas E. Turner, Secre Department or Public Advocacy tary[Freasurer; Carol M. Palmore, Immediate Past President. The opinions ex 1264 Louisville Road pressed are those of and not necessarily represent the views of The Franktort, KY 40601 the authors, do 502 564-8006 Bar Foundation or our anonymous donor. We are indebted to our donors for their 800 582-1671 immense generosity which will result in the education of many Kentuckians for the FAX # 502 564-7890 next generation on the essential nature of our liberty. ED MONAI-IAN

JUNE 1992 IThe Advocate 2 FEATURES

CHAPTER 1: 4 GEORGE NICHOLAS, FATHER OF KENTUCKY’S B114. OFRJGHTS by Dr. Thomas B. Clark 6 THE TEXT OF THE KENTUCKY BILL OFRIGHTS 1722, 1799, 1850 8 CHAPTER 2: 11 THE KENTUCKY BILL OFRIGHTS by Dr. Thomas D. Clark l3 THE BILL OF RIGHTS: OLD LESSONS AND NEW CHALLENGES by Pmfessor larks J. Ogletree 17 THE UNITED STATES SUPREME COURT THE MOST PRECIOUS BATFLE PLAN: THE BILL OF RIGHTS by Judith G. Clabes 21 GEORGE MASON, FATHER OF THE UNITED STATES CONSTITUTION by Judge John D. Miller 24 CHAPTER 3: 30 USING KENTUCKY’S BILL OFRIGHTS IN CRIMINAL CASES by Frank Heft 31 STATE CONSTITUTIONAL LAW CASES REPORTED, 1987- 91 STATE CONSTITUTIONS AND THE CRIMINAL DEFENSE LAWYER by John H. Hingson Ill 35 USING KENTUCKY’S SECTION lOby Ernie Lewis 40 USING KENTUCKY’S CONSTITUTION TO CHALLENGE EVIDENCE PRACTICES 44 by David Niehaus THOMAS JEFFERSON MIDDLE SCHOOL AND THE BILL OF RIGHTS 51 LRC’s 1987 SPECIAL COMMISSION OF CONSTITUTIONAL REVIEW’S BILL OF RIGHTS RECOMENDATIONS 52 INTERPRETING THE CONSTITUTION 68 CHAPTER 4: 69 THE FIRST AMENDMENT AND THE CRIMINAL JUSTICE SYSTEM by Roy Moore 70 CHAPTER 5: 77 THE RIGHT TO TESTIFY: THE NEWEST RIGHT by Timothy P. O’Neill - 79 CHAPTER 6: 85 TIlE COMPULSORY CLAUSE by Edward J. Imwinkelried 86 CHAPTER 7: 92 DOUBLE JEOPARDY by Rob Sexton CHAPTER 8: 98 THE RIGHT it ThIAL BY JURY by Rebecca DiLoreto 99 THE JURY ASSEMBLED by William A. Pangman 101 A NATURAL HISTORY OF THE FULLY INFORMED JURY ASSOCIATION by Don Doig 109 ANSWERING THE HARD QUESTIONS ABOUT FIJA by Lany Dodge Ill CHAPTER 9: 114 SECTION 2 OF THE KENTUCKY CONSTITUTION by Allison Connelly 115 CHAPTER 10: 118 OBSERVATIONS ABOUT THE RIGHT TO COUNSEL by JudgeEdward H. Johnstone 119 THE RIGHT TOCOUNSEL: ATRISK FOR KENTUCKY’S POOR by Ed Monahan 122 FREE CQUNSEL: A RIGHT, NOT A CHARITYby Jim Neuhard 126 CHRONOLOGY OF BICENTENNIAL DATES RELATED TOTHE RATIFICATION OF THE BILL OF RIGHTS 130 CHAPTER 11: 131 BEYOND THE BATTERED CONST1TUTIONby Nickolas Facaros 133 THE IMPORTANCE OF CIVIL LIBERTIES it THE FBI by William S. Sessions 136 AMERICA’S UNFUNNIEST HOME VIDEO 139 PRIVACY AND THE BILL OF RIGHTS Milton Hirsch 140 CHAPTER 12: 147 DO THE GUILTY GOFREE? by Robert Carran 148 HOW CAN YOU DEFEND THOSE CROOKS? by fed S. Rakoff 150 ANATOMY OF A CRIMINAL DEFENSE LAWYER by Emmett Colvin 153 REFLECTIONS ON CRIMINAL DEFENSE WORK by John Delgado 156 HE WAS FAITHFUL: WILLIAM H. SEWARD 158 CHAPTER 13: 159 RACE, SENTENCING AND CRIMINAL JUSTICE by Randolph N. Stone 161 REFORMING A DISCRIMINATORY CRIMINAL JUSTICE SYSTEM by Scott Wallace 163 CONSTITUTION CAME UP SHORT ON MATTER OF EQUALITY by Eleanor Holmes Norton 167 CHAPTER i4: 168 CHILDREN AND THE CONSTTTUTION by Barbara M. Hoithaus 169 CHAPTER 15: 172 THE FIFTH AMENDMENT by Keith Moore 173

JUNE 1992 IThe Advocate 3 HAPTER 1

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We, tile peopte of tIle Commonwealth offJCentucy,gratefuto tile 9ln4qhlty godfor civil, political, and re4qious liberties we enjoy, and invoicing tile continuance of these blessings, do ordain and establish this Constitution.

Kentucky Constitution, 1891

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JUNE 1992/The Advocate 5 GEORGE NICHOLAS: FATHER OF THE KENTUCKY CONSTITUTION

Thomas D. Clark

George Nicholas 1753-1799 was born don. Beyond this he was givenan insight leges delegated to produce a constitu into a prominent tidewater fain into the role of the state in the Union of tion. He sought to end slavery in Ken ily in Williamsburg. Early in life young States. tuckyby constitutional fiat, defended the Nicholas demonstrated a brilliance of sanctity of land titles when properly reg mind which was to characterize his too George Nicholasexpressed strong views istered, equality of the individual under brieflife. Though a resident of Kentucky on representative government, the rights the application of the laws, a strong ex for only a decade, he was to have a pro of the slates, and the general provisions ecutive power, universal manhood suf found influence on the formation of the of extended rights. In the fundamental frage, and the direct election of the gov Commonwealth and the setting of legal debates he confronted Patrick Henry in a ernor. The latter fact was eloquently precedents in its fonnative years. At age defense of the work of the framers of the documented in the strong statements of thirty-five George Nicholas emigrated to Constitution. He also confronted the executive power made in Article ifi. Kentucky in 1788. He came west after delegation from the Kentucky District having had a seasoning experience in the which voted unanimously against ratifi Though George Nicholas was well in- furious Virginia debate over ratification cation. At the moment the Kentuckians formed and profoundly influenced by the of the United States Constitution. Too he were highly agitated over three major United States Constitution he had at hand had been a representative in the Virginia issues, separation from Virginia, dealing other constitutional sources, including General Assembly from Hanover with the Indian policy, and opening the the Massachusetts Constitution and the County, and later from Albemarle River to free access to all second one of Pennsylvania. In a final County. western boatmen. The latter topic had analysis the first Constitution of Ken almost obscured the separation question tucky reflected all three of these sources, Nicholas leaned more to the Madisonian in the Danville convention of 1787. plus the Constitution of Virginia, and the philosophy of constitutional govern writings in the Federalist. Nicholas was ment. As a matter of fact he had incurred Thus when George Nicholas arrived in able to prevail upon the Committee on some Jeffersonian enmity in pushing an Kentucky in 1788,he brought with hima Privilege to accept much of his political investigation of Thomas Jefferson’s gu mature knowledge of constitutional philosophy. bernatorial administration. As a legisla drafting, and of many of the issues con tor Nicholas was activelyinvolved in de fronting the Kentuckians in their move When the Government of the Common bating several cardinal issues which for independent statehood. In 1789 the wealth of Kentucky was organized on came before the General Assembly. Virginia General Assembly had for the June 4, 1792, George Nicholas became Among them public debt, established re third time enacted enabling legislation the state’s first Attorney General, and in ligion, and the matter of land policies. prescribing the terms by which Kentucky a sense the main actor in the application might separate itself from the mother of the constitutional principals to the ad As an active politician in Virginia Nicho state. ministration of the new government. Be las was thrown into association with yond this he became a key defender of James Madison, Thomas Jefferson, In 1792 George Nicholas may have had Kentucky in the long simmering dispute George Washington, and many of the one of the best legal-constitutional mind with Spain over the free access to the other prominent men of the times. No in the Kentucky District. He certainly had Mississippi River and the New Orleans doubt the most important political expe had the most experience in the field. Be interchange produce market. In the con rience George Nicholas had was his in sides his experience in debating constitu flict with the Federal Government over volvement in the stirringdebates over the tional issues he demonstrated in Danville the excise tax on whiskey, Nicholas fa ratification of the Federal Constitution. the capacity to together and form a vored the tax, but opposed President He was a strong proponent of ratification, consensus of the delegation in the Tenth Washington’s use of the militia to en a fact which threwhim into opposition to Separation Convention. force its collection. He raised a strong Patrick Henry and the delegation from republican voice in the west in opposition the KentuckyDisthct. Unanimously both contemporary dele to the despised federalist Alien and Sedi gates and later historians have called tion laws, contributing to the composi As a participant in the constitutional de George Nicholas the "Father of the First tion and adoption of the famous Ken bates Nicholas became thoroughly Kentucky Constitution." In the conven tucky Resolutions. grounded in both the process of constitu tion of April 1792, and after the admis tional drafting, and in gaging the cross sion ofKentucky into the Union had been On November 10,1798, George Nicholas currents of opinion on the subject. The sanctioned by Congress, George Nicho wrote "A Friend" an extended letter in Virginia debate had drawn into context las became the key delegate in the draft which he set forth his views on the Alien the varying views on the nature and ac ing of the constitution. He was amember and Sedition Laws along with much of ceptability of the United States Constitu of the nine member Committee onPrivi his political philosophy in general. Aside from his influence on the framing of the

JUNE1992 ITheAdvocate 6 first KentuckyConstitution and his oppo sition to the oppressive Spanish issues and the obnoxious federal laws, George Nicholas was to exert a strong and lasting influence in the fieldof teaching the law. As the first professor of law in Transyl Li vania Seminary, he taught William T. Berry, Martin D. Hardin, Joseph Hainil ton Daviess, Robert Wickliffe and other bright stars of the Kentucky Bar.Nicho las’ life in Kentuckyspanned only a dec ade. He died in Lexington at the age of fifty-five years, in 1799, the yearhis Con stitution underwent a review and a revi J* tMt.t4t?,4k sion. Following the Kentucky custom of ---. naming its emerging counties for its mili tary heroes and politicians, George Nicholas’ memory was commemorated //rnnnneiiz in the naming of Nicholas County which was formed the year of his death, and the 2’ last one organized in the eighteenth cen tury. THOMAS D. CLARK 248 Tahoma Road Lexington, Kentucky40502 606 277-5303

Dr. Clark is’ a Kentucky landmark; the Dean of Kentucky historians. What Ken tuckians know oftheir past is a g4ft ofDr. Clark. No scholar has contributed more to the progress of Kentucky. He has authored scoresof books and edited more than a dozen more. A Mississiopi native, Dr. Clark taught at UK’s History Dept. retiring ü 1965 as its Chair. Dr. Clark has strong opinions about Kentucky’s Consti tution and what thefuture requiresit. He recently spoke at DPA’s i991 Annual Con ference on the Kentucky Bill ofRights, and his remarks there appear in this issue.

We owe Dr. Clarks a great deal for his assistance to us in the understanding the ‘7’ . .4’ ‘ history ofKentucky’s Bill of Rights. - :. .‘* ...... - tL. ._;‘ . . S

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Title Page of Kentucky’s 1792 Constitution. Original at Kentucky’s Historical Society, Frankfort.

JUNE 1992/The Advocate 7 1792 !lcentuckyWiffofRjglIts be given in evidence. And in all indict there is not strong presumption of fraud, ments for libels, thejury shallhave aright shallnot be continued in prison after de 2351CL’E XII. to determine the law and the facts under livering up his estate for the benefit ofhis the direction ofthe court asin other cases. creditors, in such manner as shall be pre scribed by law. 9. Thatthe people shall be secure in their Done in Convention at Danville, the persons, houses, papers, and possessions 18. That no ex post facto law, nor any nineteenth day of April, 1792, and of the from unreasonable seizures and searches; law impairingcontracts, shall be made. independence of the United States of and that no warrant to search any place, America the 16th. or to seize any person or things, shall 19. That no person shall be attained of issue without describing them as nearly treason or felony by the Legislature. That the general, great and essentialprin as may be, nor without probable cause, ciples of liberty and free government may supported by oath or affirmation. 20. That no attainder shall work corrup be recognized and established, WE DE tion of blood, nor except during the life CLARE- 10. That in all criminal prosecutions, the of the offender, forfeiture of estate to the accused hath a right to be heard by him Commonwealth. 1. That all men when they form a social selfand his counsel; to demand the nature compact, are equal, and that no man or and cause of the accusation against him, 21. The estates of such person as shall set of men are entitled to exclusive sepa to meet the witnesses face to face, to have destroy their own lives, shall descend or rate public services. compulsory process for obtaining wit vest as in case of natural death, and if any nesses in his favor; and in prosecutions person shall be killed by casualty, there 2. That all power is inherent in the peo by indictment or information, a speedy shall be no forfeiture by reason thereof. ple, and all free governments are founded public trial by an impartial jury of the on their authority, and instituted fortheir vicinage; that he can notbe compelled to 22. That the citizens have a right, in a peace, safety and happiness. For the ad give evidence against himself, nor can he peaceable manner, to assemble together vancement of these ends, they have at all be deprived of his life, liberty, or prop- for their common good, and to apply to times an unalienable and indefeasible my, unless by the judgment of his peers, those invested withthe powers ofgovern right to alter, refonn, or abolish their or the law of the land. ment for redress of grievances or other government, in such manner as they may proper purposes by petition, address, or think proper. 11. That no person shall, for any indict remonstrance, able offense be proceeded against crimi 3. That all men have a natural and inde nally by information; exceptin cases aris 23. The rights of the citizens to bear arms feasible right to worship Almighty God ing in the land or naval forces, or in the in defense of themselves and the State according to the dictates of their own militia when in actual service, in time of shallnot be questioned. consciences; that no man can of right be war or public danger, or by leave of the compelled to attend,erect, or support any court for oppression or misdemeanor in 24. That no standing army shall, in time place of worship, or to maintain any miii office. of peace, be kept up without the consent istry against his consent; that no human of the Legislature; and the military shall, authority can, in any case whatever, con 12. No personshall, for the same offense, in all cases and at all times, be in sthct trol or interfere with the rights of con be twice put in jeopardy of his life or subordination to the civil power. science; and that no preference shall ever limb; nor shall any man’s property be be given by law to any religious societies taken or applied to public use withoutthe 25. That no soldier shall, in timeof peace, or modes of worship. consent of his representatives, and with be quartered in any house, without the out just compensation being previously consent of the owner, nor in timeof war, 4. That the civil rights, privileges, or made to him. but in a manner to be prescribed by law. capacities of any citizen shall in nowise be diminished or enlarged on account of 13. That all courts shall be open, and 26. That the Legislature shall not grant his religion. every person for an injury done him inhis any title of nobility of hereditary distinc lands, goods, person, or reputation, shall tion, nor create any office the appoint 5. That all elections shall be free and have remedy by the due course of law; ment of which shall be for a longer time equal. and right and justice administered, with than during good behavior. out sale, denial, or delay. 6. That thal by jury shall be as heretofore, 27. That emigration from the State shall and the right thereof remain inviolate. 14. That no power of suspending laws not be prohibited. shall be exercised, unless by the Legisla 7. That printing presses shall be free to ture or its authority. 28. To guard against transgressions of every person who undertakes to examine the high powers which we have dele the proceedings of the Legislature or any 15. That excessive bail shall not be re gated, WE DECLARE, thateverything in branch of Government; and no law shall quired, nor excessive fines imposed, nor this article is excepted out of the general ever be made to restrain the right thereof; cruel punishments inflicted. powers of government, and shall forever the free communication of thoughts and remain inviolate; and that all laws con opinions is one of the invaluable rights of 16. That all prisoners shall be bailableby trary thereto, or contrary to this Constitu man,and every citizen may freely speak, sufficient sureties, unless for capital of tion, shall be void. write, and print on any subject, being fenses, when the proof is evident or pre responsible for the abuse of that liberty. sumption great; and the privilege of the writ of habeas corpus shall not be sus 8. In prosecutions for the publication of pended, unless when in cases of rebellion papers, investigating the official conduct or invasion, the public safety may require of officers or men in public capacity, or it. where the matter published is proper for public information, the truth thereof may 17. That the person of a debtor, where

JUNE1992 IThe Advocate 8 1799 entuck,y BilTef!/gIits 8. In prosecutions for the publication of writ of habeas corpus shall not be sus papers investigating the official conduct pended, unless when in cases ofrebellion AflICuIE X. of officers ormen in a public capacity, or or invasion the public safety may require where the matter published is proper for it. public information, the truth thereof may be given in evidence. And in all indict 17. That the person of a debtor, where ments for libels, the jury shall have a right there is not strong presumption of fraud, to determine the law and the facts, under shall not be continued in prison after de the direction of the court, as in other livering up his estate forthe benefit of his Done in Convention azFrankfort, the sev cases. creditors, in such manner as shallbe pre enteenth day of August, 1799, and of the scribed by law. independence of the United States of 9. That the people shallbe secure in their America the 24th. persons, houses, papers and possessions 18. That no ex post facto law, nor any from unreasonable seizures and searches; law impairing contracts, shall be made. That the general, great, and essential prin and that no waitant to search any place. ciples of liberty and free government may or to seize any person or things, shall 19. That no person shall be attainted of be recognized and established. WE DE issue without describing them as nearly treason or felony by the Legislature. CL4RE- as may be, nor without probable cause, supported by oath or affirmation. 20. That no attainder shall work commp 1. That all freemen, when they form a tion of blood, nor, except during the life social compact, are equal, and that no 10. That in all criminal prosecutions, the of the offender, forfeiture of estate to the nian or set ofmenare entitled to exclusive accused hath a right to be heard by him Commonwealth. separatepublic emoluments or privileges self and counsel; to demand the nature from the community, but’m consideration and cause of the accusation against him; 21. That the estates of such persons as of public services. to meet the witnesses face to face; to have shall destroy their own lives, shall de compulsory process for obtaining wit scend or vest as in case of natural death; 2. That all power is inherent of the peo nesses in his favor and in prosecutions and if any person shall be killed by casu ple, and all free governments are founded by indictment or information, a speedy alty, there shallbe no forfeiture by reason on their authority, and instituted for their public trial by an impartial jury Of the thereof. peace, safety, and happiness. For the ad vicinage; that he cannotbe compelled to vancement of these ends, they have at all give evidence against himself, nor can he 22. That the citizens have a right, in a times an unalienable and indefeasible be deprived of his life, liberty, or prop peaceable manner, to assemble together right to alter, reform, or abolish their erty, unless by the judgment of his peers. for their common good, and to apply to government, in such manner as they may or the law of the land. those invested withthe powers of govern think proper. ment for redress or grievances or other 11. That no person shall, for any indict proper purposes by petition, address, or 3. That all men have a natural and inde able offense, be proceeded against crimi remonstrance. feasible right to worship Almighty God nally by information, except in cases aris according to the dictates of their own ing in the land or naval forces, or in the 23. That the rights of the citizens to bear consciences; that no man shall be com militia when in actual service, in time of arms in defense of themselves and the pelled to attend, erect, or support any war or public danger, by leave of the State shall notbe questioned. place of worship, or to maintain any min court, for oppression or misdemeanor in istry against his consent, that no human office. 24. That no standing army shall, in time authority ought, in any case whatever, to of peace, be keptup without the consent control or interfere with the rights of con 12. No person shall, for the same offense, of the Legislature; and the military shall, science; and that no preference shall ever be twice put in jeopardy of his life or in all cases, and at all times, be in strict be given by law to any religious societies limb; nor shall any man’s property be subordination to the civil power. or modes of worship. taken or applied to public use without the consent of his representatives, and with 25. Thatno soldier shall, in time ofpeace, 4. That the civil rights, privileges, or out just compensation being previously be quartered in any house, without the capacities of any citizen shall in nowise made to him. consent of the owner, nor in timeof war, be diminished or enlarged on account of but in a manner to be prescribed by law. his religion. 13. That all courts shall be open, and everypersonforaninjury done himinhis 26. That the Legislature shall not grant 5. That all elections shall be free and lands, goods, person, or reputation, shall any title of nobility or hereditary distinc equal. have remedy by the due course of law; tion, nor create any office, the appoint and right and justice administered, with ment to which shall be for a longer terni 6. That the ancient mode of thaI by jury out sale, denial or delay. than during good behavior. shall be held sacred, and the right thereof remain inviolate. 14. That no power of suspending laws 27. That emigration from the State shall shall be exercised, unless by the Legisla not be prohibited. 7. That printing presses shall be free to ture or its authority. every person who undertakes to examine 28. To guard against transgressions of the proceedings of the Legislature or any 15. That excessive bail shall not be re the high powers which we have dele branch of Government, and no law shall quired, nor excessive fines imposed, nor gated, WE DECLARE, that everythingin ever be made to restrain the right thereof; cruel punishments inflicted. this article is excepted out of the general the free communication of thoughts and powers of government, and shall forever opinions is one of the invaluable rights of 16. That all prisoners shallbe bailableby remain inviolate; and that all laws con man,and every citizen may freely speak, sufficient securities, unless for capital of wary thereto, or contrary to this Constitu write and print on any subject, being re fenses, when the proof is evident or pre tion, shall be void. sponsible for the abuse of that liberty. sumption great, and the privilege of the

JUNE 1992 ITheAdvocate 9 1850 CcntucRy fBut[ofRiI1ts erty. sion, thepublic safety may require it. ATTICLE Xlii. 10. In prosecutions for the publication of 19. That the person of a debtor, where there papers investigating the official conduct of is not strong presumption of fraud, shall not officers, or men in a public capacity, or be continued in prison after delivering up be recognized and established, WE DE where the matter published is proper for his estate for the benefit of his creditors, in CLARE- public information, the truththereof may be such manner as shall be prescribed by law. 1. That all freemen, when they form asocial given in evidence; and in all indictments for compact, are equal, and that no man, or set libels, thejury shall have a right to deter 20. That no cx post facto law, nor any law of men, are entitled to exclusive, separate mine the law and the facts under the direc impairing contracts shall be made. public emoluments or privileges from the tion of the court, as in other cases. community, but in consideration of public 21. That no person shall be attainted of services. 11. That the people shall be secure in their treasonor felony by theGeneral Assembly. persons, houses, papers, and possessions 2. That absolute, arbitrary power over the from unreasonable seizures and searches, 22. That no attainder shall workcorruption lives, liberty, and property of freemen ex and that no warrant to search any place or of blood, nor, except during the life of the ists nowhere in a Republic, not even in the to seize any person or thing, shall issue offender, forfeiture of estate to the Com largest majority. without describing them as nearly as may monwealth. be, nor without probable cause, supported 3. The right of property is before and higher by oath or affirmation. 23. That theestates of such persons as shall than any constitutional sanction; and the destroy theirown lives shall descend or vest right of the owner of a slave to such slave, 12. That in all criminal prosecutions, the as in case of natural death; and ifany person and its increase, is the same, and as invio accused hath the right to be heard by him shall be killed by casualty, there shall be no lable as the right of the owner of any prop self and counsel; to demand the nature and forfeiture by reason thereof. erty whatever. causeof theaccusation against him; to meet the witnesses face to face; to have compul 24. That the citizens have a right, in a 4. That all power is inherent in the people. sory process for obtaining witnesses in his peaceable manner, to assemble together for and all free governments are founded on favor; and in prosecutions by indictment or their common good, and apply to those their authority, and instituted for their infonnation, a speedy public trial by an invested with the powers of government for peace, safety, happiness, security, and the impartial jury of the vicinage; that he can redress of grievances, or other purposes, by protection of property. For the advance not be compelled to give evidence against petition, address, or remonstrance. ment of these ends, theyhave, at all times, himself; nor can he be deprived of his life, an inalienable and indefeasible right to al liberty,orproperty, unless bythejudgment 25. That the rights of citizens to bear arms ter, reform, or abolish their government, in of his peers, or the law of the land. in defense of themselves and the State shall such manner as they may think proper. not be questioned; but the General Assem 13. That no person shall, for any indictable bly may pass laws to prevent persons from 5. That all men have a natural and indefea offense, be proceeded against criminally by carrying concealed anns. sible right to worship Almighty God ac information, except in cases arising in the cording to the dictates of their own con land or naval forces, or in the militia when 26. That no standing army shall, in time of sciences; that no man shall be compelled to in actual service, in time of war or public peace, be kept up, without the consent of attend, erect, or support any place of wor danger,or by leave of the court, for oppres the General Assembly; and the military ship, or to maintain any ministry against his sion or misdemeanor in office. shall, in all cases and at all times, be in strict consent; that no human authority ought, in subordination to the civil power. any case whatever, to control or interfere 14. No person shall, for the same offense, with the rights of conscience; and that no be twice put in jeopardy of his life or limb; 27. That no soldier shall, in time of peace, preference shall ever be given, by law, to nor shall any. man’s property be taken or be quartered in any house, without the con any religious societies or modes of worship. applied to public use without theconsent of sent of the owner, nor in time of war, but in his representatives, and without just com a manner to be prescribed by law. 6. That the civil rights, privileges, or ca pensation being previously made to him. pacities of any citizen shall in nowise be 28. That the General Assembly shall not diminished or enlarged on account of his 15. That all courts shall be open, and every grant any title of nobility or hereditary dis religion. person, for an injury done him in his lands, tinction, nor create any office, the appoint goods, person, or reputation, shall have ment to which shall be for a longer time than 7. That all elections shall be free and equal. remedy by the due course of law, and right for a term of years. and justice administered, without sale, de 8. That the ancient mode of trial by jury nial, or delay. 29. That emigration fromthe State shall not shall be held sacred, and the right thereof be prohibited. remain inviolate, subject to such modifica 16. That no power of suspending laws shall tions as may be authorized by this Consti be exercised,unless by theGeneral Assem 30. To guard against transgressions of the tution. bly, or its authority. high powers which we have delegated, WE DECLARE, that everything in this articleis 9. That printing presses shall be free to 17. That excessive bail shall not be re expected out of the general powers of gov every person who undertakes to examine quired, nor excessive fines imposed, nor ernment. the proceedings of the General Assembly, cruel punishments inflicted. or any branch of government; and no law shall ever be made to restrain the right 18. That all prisoners shall be bailable by thereof. The free communication of sufficient securities, unless for capital of thoughts and opinions is one of the invalu fenses, when the proof is evident or pre able rights of man, and every citizen may sumption great; and theprivilege of the writ freely speak, write, and print on any sub of habeas corpus shall not be suspended, ject, responsible for the abuse of that lib unless when, in cases of rebellion or inva

JUNE 1992 ITheAdvocate 10 HAPTER 2

I7ilTany flcentucfcians are never aware they live under a Constitution [They never see it .They never feet it directly. The Constitution may eajst as a vague conception of State government in the abstract, but it seems remote to every day 4/è on rural mail: routes and pleasant streets in little town-s.... et without this set of fundamental principles to guide our local and State governments, the whole structure wouldfa[ down in confusion....Allen £Vt Trout, 1947

JUNE 1992 IThe Advocate 11 _

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JUNE 1992 IThe Advocate 12 The Kentucky Bill ofRights

Thomas D. Clark

Basic constitutional issues back charges of seditious libel interpreted The History of the as of Kentucky’s Bill of formulation of George Mason’s The VAr and adjudicated by a highly biased form Rights: A living dedication to the ginfri Declaration ofRights were exten of crown justice. Incipient was the fear free individual sive duing the first three quartets of the that the Star Chamber might be rein 18th century. This was a seminal era stated. when both British and American political GEORGE NICHOLAS: FATHER histoiy underwent significant changes. The following cases will suffice to illus OF KENTUCKY’S BILL OF Certainly the influence of John Locke, trate the contentions of seditious libel and RIGHTS 17th century philosopher-essayist, had a the adjudication of the issues. There was profound impact on late 18th century that of John Thtchin and the Observator The history of the inclusion of the 28 American political thought. This was re 1707. The editor stood accused by the sections of the Bill of Rights in the first flected in the rising doctrine of the e4ual- government of seditious libel. He had Kentucky constitution is vague. How icy of men, the sanctity of property, and written that the crown government had ever, every source describing the process the checks and balances thesis of govern accepted bribes in gold from France in of framing that document declares un ment. In the Lockean sense man was born connection with a naval matter. After equivocally that George Nicholas was free and equal, a philosophy clearly swit considerable arguments to the precise the principal author. The constitution was ten into the various American bills of place of the writing and of its publication drafted in the brief period between April rights. the jury found Tutchin guilty of publish 2-18, 1792. There seems to be no docu ing the article but because of a procedural mentary proof that any delegate had in George Mason’s declaration of rights re blunder on the part of the Crown’s Coun hand a copy of the second Pnnsy1vania flected the politicaland social tenor of the sel he was set free. constitution, but evidence is clear that a times in most of the American colonies. copy was present. Beyond this it asserted in terse wording A second case involving libel, actually the essence of the underlying feeling ofa the direct freedom of the press, was that With only the slightest variations the large number of thoughtful colonial of Richard Franklinand the Craftsman in Kentucky Bill ofRigha used the term, all Americans that they shared withall Eng 1731. This issue arose out of Franklin’s freemen instead of ailmen. Alsothe Ken lishmen the emerging freedoms. Mason comments on King George II’s attitude tucky statement openedwitha direct quo had ready access to his uncle John Mer toward the observance of the Treaty of tation from the 1776 "Virginia Declara cer’s fifteen hundred volume library. Ohent, an act which Franklin claimed tion of Rights." Section 4 of the Ken Surely in that collection were titles which was unsettling to international peace. The tucky listing eliminated the phrase, "nei revealed contemporary English political argument in this case as to the fact of ther ought the offices of magistrates, leg thoughts and reactions of the 18th cen seditious libel by the Lord Chief Justice islators, or judge, to be hereditary." wry. At the same timehe was conversant Sir Robert Raymond was to make the about affairs in the Ameiican colonies on Franklin incident a classic one in the fu GROUNDED IN MASON ANI the eve of independence and revolution. ture. Franklin was convicted but received LOCKE As indicated above, Mason’s most dis only modest punishment. tinctive accomplishment was that of Neither the Pennsylvania nor Kentucky compiling a clear statement of political There was published in London during Bill of Rights was original. One might freedom in the 16 sections of the Virginia the first quarter of the 18th century a make a tenuous casethat the elements of Declaration of Rights, an outline which series of writings known as the "Cato freedom reiterated in all stated American was to be followed in the formulation of Letters."These were wTitten and publish bills of rights, and even in the first 9 the present-thy statements of human ed by John Trenchard and Thomas Gor amendments to the Federal Constitution, freedoms and rights under the law. don. They denounced the excesses of the have a vague tracery to the Magna frauds during the reign of Queen Anne, Charta of Britain. This, however, must FREEDOM FROM ARBITRARY especially those growing out of the great be viewed as the slenderest of historical DECISIONS South Seas Bubble speculations. The threads. More modem interpretations of authors, our of fear of crown lawyers the Magna Charta indicate that it was Standing, always like a ghost in the po searching constantly for published state distinctly conservative and reacüonaiy in litical wings of the 16th mid 17th centu ments which could be proceeded against tone and intent. The document contained ries, was the abhorred Star Chamber with as libelous, were cautious. Nevertheless no real essence of personal guarantees of its harsh and arbitrary delivery ofjudicial the collected "Cato Letters," one -of freedom in the sense of the people decisions in criminal and mligious mat which pertained to the freedom of the achieving individual liberties. ters. This abhorrence lingered well into press, were published in pamphlet loin the 18th century in a sensitivity to and received wide disthbution in both England and America. On this side of the

JUNE1992 IThe Advocate 13 Atlantic they added further to the grow tive subtractions or additions have been bitrary power over the lives, liberty, and ing political unrest and stirrings for free made to it during two centuries. In read property offreemen except for crimes dom. ing the available debates and discussions exits nowhere in a republic - not even in one gathers the impression, that the few the largest majority." After considerable For American colonials the classic test of exceptions, any changes made in the Bill debate this statement was added as the freedom of the press was that provoked ofRights have been almost purely stylis new section 2 to the Bill ofRights. by the German immigrant John Peter tic ones, or,maybe, simply careless copy Zenger in 1735. Zenger, publisher of the ing by public printers. Whatever the dif SECTION 6: New York Weekly Journal, was brought ferences may be in the four versions, to thai in April of that year on the charge none has altered the long and arduous In section 6, which pertains to trial by of criminal and seditious libel stemming tradition behind their formulation. jury, Thomas W. Lindsay of Franklin from his criticism of colonial crown offi Though not engraved in stone, the Ken County pTOOSCd the rather reactionary cials. He had accused colonial Governor tucky Bill ofRights over two centuries addition, "Bw the GeneralAssembly mc’ William Cosby of arbiuañly removing has taken on a sanctity which has given a provide fry law that juries, in civil cases, Chief Justice Lewis Morris from office. heart and soul foundation to the entire shall consist of less number than twelve, In the celebrated thai, in which the dis democratic process in the Common anti that 2f3rds of a July may find a tinguished colonial lawyer, Andrew wealth, even though a vast percentage of verdict in any case either civil or cri.’ni Hamilton of Philadelphia, volunteered to the population is ignorant of its actual naL" Thisproposal evoked extensivedis defend Zenger, engaged in a contest with provisions. Its history through four con cussion among the lawyer delegates, a the Crown’s Counsel in citing English stitutional conventions, during times of debate which, on both sides, reflected the authorities on the subject of seditious li warand peace,and the enactment of vol prevailing social and political conditions bel. Hamilton won a jury decision of not umes of laws and the handing down of in Kentucky at the time. Finally, dele guilty for his client andJohn Peter Zenger endless court decisions, theBill ofRig his gates supported the addition only of the was released from jail, and was voted has rQtained a granitic durability. phrase to the original section 6, "subject freedom of the corporation by the com to such modifications as may be author moncouncil. The half century, 1800-1850, was an era ized by the constitution." ofconsiderable political and social stress. The following year Zenger published the Because ofthe embittered slavery contro SECTION 7; FREEDOMOF THE pamphlet entitled, A Brief Narrative of versy there were threats to freedoms, es PRESS the Case and Tryal ofJohnPeterZenger. pecially that of the press. The Bill of Irving Brain wrote of this publication in Rights received extensive discussion in Thomas James, a Whig farmer from his book Bill of Rights, that the "Great the constitutional convention of 1849. Hickman and Fulton counties, moved on Noise in the world" was not due to the John W. Stephenson of Kenton County December 6th to strike out of section 7 New York jury’s revolt against British was chairman of the committee on gen the words, "The free conimunication of judicial rulings but rather because of its eral provisions. He reported on Novem thoughts and opinions is one of the in dramatic effects. The Zenger case has ber 3rd that the committee recommended valuable rights of man, and every citizen had a life of its own in the history of no changes in the statement of rights. may fully speak, write, and print, on any American journalism. There, however, in subject, being responsible for the accu 1735 was already an advancing move SECTION 2: PROPOSAL racy of that liberty." James quoted the ment to permit free men to express their age-old adage about a robber stealing thoughts, whatever they were, and with Three days later , of ones purse stealing trash, but robbing one out restraint or fear of charges of sedi Henderson County, offered an amend of his good name leaves the injured indi tious libel. These cases were seminal ment to section 3 to read: "That all vidual poor indeed. He launched into an ones in the suuggle to gain complete power is inherent in the people, and all eloquent but angry discourse aimed at freedom, and to the wiiting into Amed free governments are founded on their limiting the freedom of the press. Just as canBillsof Rights freedom of speech and authority and consent, and institutedfor eloquently he revealed a total ignorance press sections. their peace, safety, and happiness, and of the hard won freedoms of the press and the security of their property, they have of its historical significance. Obviously The evidence of just what the delegates at all times an unalienable and indefea farmer James had never heard of the cele to the 10th Kentucky Convention meet sible right to after, reform, or abolish brated John Peter Zenger case. ing in Danville in April 1792 had inhand their government, in such manner as they is scanty at best. The sources of the Ken may think proper." Delegate James’ anger was directed tucky Bill of Rights, however, are not against the Louisville Chronicle which difficult to uace. Clearly delegates had at Dixon’s contentions were that his sug had recently published an anti-Whig arti hand The Virginia Declaration ofRig hts gested changes strengthened the section cle in which it spoke caustically of the and that state’s constitution and must by giving it the necessary element of actions of "Kitchen Knife"Ben Hardin of have had that of Massachusetts, and cer clarity. There, however, may have beena Lame County. The piece entitled, "Sale tainly the secoüdconstitution of Pennsyl subtly in the use of, "and the security of Avowed," said, "Weunderstand that Old vania. There can be no doubt that the their property." This amendment came Ben Hardin has at last openly come out leading delegate George Nicholas was on the-heels of an on-going and rapidly and declared that he will oppose the new familiar withall of these documents plus intensifying debate over slavery. In 1849 constitution. We stated sometime since the addition, in 1791. of the first ten Kentuckians were agitated over the anti that Old Ben was at heart against consti amendments to the 1787 United States slavery and emancipationist crusades, tutional reform, and bad sold himself to Constitution. and with the bitter argument over the the central power at Frankfort, and now repeal of the anti-importation law of the avowal of the sale is made by himself GRANITESANCTITY OF KEN 1833. Nor does he stand alone. There are ninny TUCKY’S BILL OF RIGHTS others with him who have their price in Again, on December 5th, Archibald their pockets; and the democratic party Historically the Kentucky Bill of Rights Dixon offered a new section 2 to be will learn with astonishment that among has survived almost wholly intact in four included in the Bill of Rights. This them are men who dare to themselves constitutional conventions. No substan amendmentprovided, "That absolute ar democrats."

JUNE1992 IThe Advocate 14 James’ fervent speech fell on the deaf THE 1890 CHANGES rectly, upon the individual rigits of ears and he realizedit by withdrawing his Amen amendment. The convention proceeded The Bill ofRights included in the fourth to restate intact the 1792 section pertain Kentucky Constitution is almost identi Sang ly, delegates to the Kentucky ing to the freedom of the press withoffly cal withthose included in the threeearlier constit tional convention of 1890 gave the most minor difference in wording, a documents. The major exceptions appear no cular attention in its adoption of fact which may be accounted for by an in the sections relating to property and a bill o rights to the due process clauses inexact nnscribing by a clerk or the pub franchises in which the phrase was of the th and 14th Amendments. This lic printer. added, bus no property shall be exempt clause, peciallythat in the 14th Amend from taxation except as provided in the ment, to have enormous bearing on A NEW SECTION 2 ADOPTED constitution, and every grant of fran future j dicial decisions and upon legis chise, privilege of exemption, shall re lation t both state and national levels. Mter considerable debate as to the inclu main subject to revocation, alteration of Since Es adoption in 1868, the 14th sion of Archibald Dixon’s proposed new amendment. Ame ent has provoked a veritable section, ‘9’hat absolute, arbitrary power myriad of interpretations, applications, over the lives, liberty and prosperity of In conformity with the 13th Amendment and liti ation, all of which has borne freemen except for crime exist nowhere to the Constitution of the United States, directi or indirectly upon personal free in a republic - not even in the largest delegates to the Kentucky convention in doms d privileges. majority." This section was adopted with 1890 provided in the new section 25 the amendment to be included in the Bill that, Slavery aM involuntary servitude in Thoug no mention is made in the more ofRights by a vote of 55 to 34. this state areforbidden, except as apwz recent entucky Bill of Rights of the ishinent for crime, whereof the party federal endments, it may be contended THE SLIGHT REVISIONS OF 1849 shall have been duly convicted. The in that erent in the entire declaration tent arid sentiment of this new section the 26 sections of the statement In its plenary session of December 21, was far removed from the positive senti of righ is the fact that the due process 1849, the convention delegates adopted ments which were expressed in the con under elawmaybeappliedtoallac the full and slightly revisedBill ofRights. stitutional convention of 1849. The latter tions volving personal freedoms. Tn As stated above, a new section 2 was convention had devoted much time and cases th federal law ve5us those of the added. This necessitated a change of journal space to devising a protection of states e clause has been applied to all numbering the subsequent sections. The the institutionofslavery from the ravages legislati n. In all instances the interpreta new section 2 contained the additional of freedom. The 13th Amendment to the tion of rsonal rights under the due proc phrase, security, and the protection of Federal Constitution nullified Ken ess c se has reflected a condition of property. The new section 7 also con tucky’s iron-bound guarantee of the sur constan y changing times and their as tained the additional phrase, subject to vival of slavery in the state. In 1890 sec sessme t of old values. such mod atkins as may be authorized tion 25 of the Bill of Rights ratified this l this constitution. In old sections 23 fact. SO IAL AND POLITICAL and 24, bearing on the subject of ciU INFLUENCES zens’ rights to bear aims, a phrase was Delegates to the 4th Constitutional Con added, but the general assembly may vention beganan extended debate on the Tangen ally Kentucky’s Bill of Rights pass laws to prevent personsfrom carry- subject of the Bill ofRights on October 2, has be affected in many ways by Mg concealed arms. In section 27, per- 1890 and continued on the subject for the changin political and social conditions. mining to titles and the creation of new next 21 thys. It required 512 pages of the Thishas been especially wue hi the matter offices, the statement was changed from journal to cover all the oratory. Consid of the sive body of court decisions during good behaviour to for a term of eration of changes in the bill was excuse and legi lation in the field of civil rights. years. enough for the outpouring of late Victo The cas s applying to the segregation of rian declamation, some of it vapid, some races in the fields of public education, Running througJ the debates of the con historically uninformed, and most of it acco tions, and the voting fran stitutional convention of 1849 was the unproductive of change. When the chise, pecially, had a bearing on the thread of a profound concernforthe sanc whooping and shouting died down the basic n ture of the Kentucky Bill of tity of the statement of rights included in Bill ofRights of 1792 was left essentially Rights. the field of education the first Kentucky Constitution. Occa intact. The preamble which expressed a rel. ames v. Canada, Johnson v. sionally a lawyer exposed a preJudice gratefulness to God for the political, civil Univers ly of Kentucky, and Brown v. based upon adverse experiences in gath and religious liberties about to be in Board Education were important to ering evidence and the trial of cases, but cluded in the new Constitution. Funda this Ma In addition the passage by Con these were overlooked after the plaintiff mentally the spirit of 1792 was given new gress of the Civil Rights Laws in the had been heard. By no means were the life, only a light editorial hand was ap 1960’s influence fundamentally the modest changes accepted unanimously. plied to most of the section. course legislation in the states. In the In a concluding analysis of the actions of case of entucky’sBill ofRights this has the convention, changes made in the Bill Strangely, delegates to the constitutional meant antiquation of all references to ofRights were exceedingly limited with convention of 1890 gave no particular race and gender. Perhaps it even implies the possible exception of section 2. In attention to the dueprocess clauses in the substant al rephrasing ofmany of the see- several cases. including section 2, the 5th Amendment to the Federal Constitu dons of e 811! of Rights so as to insure modifications may have been redundant, tion, or its restatement more forcefully in equality f treatment in the laws without as many delegates had suggested. Occa the 14th Amendment. In time, after the inferen by phraseology to race and gen sionally there were reflected either politi adoption of the 14th Amendment in der. cally partisan feelings or an ignorance of 1868, the due process clause was to have the history of the age-old contentions to enormous bearing upon legislation and 19 REAFIRMATION OF gain the personal liberties enshrined th judicial decisions. There has been created IVIBUAL LIBERTIES the Bill of Rights, or the nature of per a veritable myriad of interpretations, ap petuating them in federal and state con plications, and litigation, all of which has The sub ommittee of the Special Com stitutional revisions. some sort of bearing, directly or mdi mission on Constitutional Review in

JUNE 1992 [The Advocate 15 L 1987, made an extensive examination of the changes havebeen made asan expan L xington, KY 40502 the Kentucky Bill of Rights. It suggested sion of rights rather than as restraints. 06 277-5303 numerous emendations of the broad specnum of rights covered in sections OUR BILL OF RIGHTS IS LIVING L r. Clark is a Kesuacky landmark; the 1-261. The most fundamental changes AND VIBRANT L ean of Kentucky historians. What Ken proposed concerned gender, race, prose tZ ckians know of their past is a gft of Dr. cution by information, exacting the death Both the national and Kentucky bills for C lark. No scholar has contributed more to penalty, use of evidence by unreasonable rights have proved to be living vibrant progress ofKentucky. Hehas authored search and seizure, use of the term things. For instance, the Open Records a score of books and edited more than Commonwealth" instead of "State," rec Law has taken the freedom of investiga d ‘zen more. A Mississippi native, Dr. ognition of the increasing use of elec tion and the press far beyond anything C. lark taught at U.K.’s historydepanment, ifonically gathered information, and the Peter Zenger of his counsel Andrew ti tiring in 1965 as its chairman. Dr. Clark removal of section 12 relating to indict Hamilton, Richard Franklin or "Cain" h cstrong opinions about Knuuc/cy’s Con able offenses. could have conceived. The Civil Rights S itution and what the futiwe requires of it. laws of the 1960’s opened broad legal I e recently spoke at the 1991 Annual DIM As fundamental as the committee’s sug vistas of race and gender notdreamed of C onference on the Kentucky Bill ofRights, gestions were, none of them in any way in Danville in 1792. A single instance, a 4 this ankle reflects his remarks. even remotely implied a weakening of Brown it. Board ofEducanonkilled Ken the Kentucky Bill of Rights, quite to the tucky’s Day Law dead in its tracks, and contrary, an effort was made to bring this instigated a social revolution, the end of segment of the constitution intoconform which is not in sight. Roe v. Wade has ity with the changing Limes and the ever- even pennealed local politics. broadening of the individual’s central po sition in the complex matrix of the laws DR. THOMAS D. CLARK while asserting a guarantee of personal 248 Tahoma Road freedoms, but reminding of personal re sponsibilities.

AMERICA’S HISTORICAL CONSTITUTION DEVOTION TO INDIVIDUAL RIGHTS of the CONTINUE AND EXPAND ro_.orc1 th of Ke tuck. A cennal historical fact pertaining to the Kentucky Bill ofRights is that the rash of events in the first three-çiarters of the PREAMP, E. 18th century in both England and Amer Yc,5t pconlc or the Co;:onwczJth 0 Kenteck::,rrLteful to ica drew together the strands of man’s search for guarantees of individual free Al. ht God fr the civi1,o11 tica and relicious liberties doms. That a statement of the long and V;L cnjc,atd irvoLdrc the con inuarcc of thec hics&ings, arduous travails in this area of human affairs could be refined and compacted C o:a1rid est1biisL this Consti ution. into as succinct a formula as the first 9 amendments of the United States Consfi Wtion and in the various statements of rights in state consdniüons is at once a 131 fL OF RI HITS4 major American intellectual-historical accomplishment. Equally as important is T?at the çret and esscntial princi Jes or liberty and free the fact that over the past two centuries rovern:ert nm’: he recoeni ed and es ahlizbcd, We Declare that: there has been implanted in much of the American political mind an abiding dedi ceticn 1. Mi rer are,b rature,rr*e and equal,ani have cation to the basic freedoms assured hi the various constitutional versions of the ecrtin irtherent and Inailenahic ri ;hts,aztnc which ray be fundamental rights ofmankind function rcckoned: thg as a free individual in an open demo cratic society. First: The right of enjoying Si de endint: their lives and Just as important is the fact that the gen 1ierties. era! public concept of the freedoms guar Second: The rirht of warshipini Mz’.gty Gcd according to the anteed in the Bill of Rights, federal and state, is that with the enactment of much r}jcttes or thcir consciences. legislation, the handling down of court Tdrd The right or seckin and puruir.c thdr sarety and decisions, and the production of schol any legal studies, the basic elementof the Bill of Rights have been able to survive and to be expanded. In the 20th century Fourtht The right of freely cornurdat2ng thEir thouchts and alone the application of personal free opinions. doms have far exceeded anything either 18th and 19th century constitutional fa Fifth: The flght or acquiring and nratoctiflg property. thers could possibly have conceived, yct Page 1 of 1891. official copy ofthe KentuckyCoi titution. Original at the Kentucky Histor Society.

JUNE 1992 IThe Advocate 16 THE BILL OF RIGHTS: OLD LESSONS AND NEW CHALLENGES

Charles J. Ogletree

It is with greatpleasure that I participate defender system in this state more it But a mask of Sn, however thick, can in the 1991 waining program of the Ken cently, I wouldnot be able to stand before never American justice when a tucky Public Defenders office. Public you and discuss the Bill of Rights. I black man happens to be on triaL Defenders in Kentuckyhave been leaders certainly would notbe able to stand here in the fight, not only to constantly real- and criticize those who continually try to Itis tsomuchthebusiness ofhis firm the critical importanceof the Bill of eviscerate those rights at every turn. enemi to prove him guilty, as it is the Rights, but also in the vanguard of those Every day that you stand before judges busin ss of himself to prove his limo attempting to preserve them. This battle and defend the Constitution, you make a cence. The reasonable doubt which is has become increasingly difficult over difference. Every time you insist that a usuall interposed to save the life in the last century, and, regrettably during prosecutor offer a sensible plea to a cli lii, of a white man charged with this term of the United States Supreme ent, you are fighting for the Constitution. crime, seldom has any force or effect Court. lampleasedrobeinaroomfull Every time you stand before a jury and when a colored man is accused of of people who are committed to insuring demand that they recognize that your cli crime. the full protection of each and every in ent is cloaked in gowns proclaiming that digent defendant in the criminal justice the Constitution guarantees her the we It woul be disappointing enough if we system. Having served as a public de sumption of ixmocence, you are enforcing could s mply conclude that Frederick fender in the District of Columbia for the Bill ofRights. Every time you stand Dougl s’s comments in the 1800’s were seven years. I can fully appreciate your hereand hear the trier of fact whisper the nowob olete, or only applied to African resolve to lead our clients through these two greatest words in the English lan Amen However, when I take a look most difficult times. Your battle is a dif guage, you are keeping the Bill ofRights at the 811 of Rights in this country, and ficult one. We are in a time when the alive and vital. When you, as thvestiga the depi rable nature of the criminal jus criminal justice systemis on the verge of tors, fmd facts and prepare witnesses; dcc sys in, I can only confirm what you collapse. We have seen the signals for when paralegals fmd those cases, stat already ow: The problems of the crimi some time, but it is difficult to fight utes, and legislative histories, you invigo naijusti e system are still with us, and are against such a strong national dde against rate the Constitution which you, as sen likely continue into the future, unless the rights of the indigent accused. I can tencing &ivocates, present our clients as some tical changes occur. Those com appreciate the simple, but incredibly im sympathetic human beings, you give real mitted t fighting for the rights of the portant statement by the civil rights meaning to the concept of justice. Re disenfr chise, the abused, the under leader Fannie Lou Hamer, who, in the member, when you give up, there is no privileg ci, are painfully aware of the cuts middle of some of the most dufficult days alternate line of defense. You are the only in all pr grams designed to help the help of the civil rights struggle, paused to ob buffer between your client and a hostile less, an realize that our budgets havenot serve: "I’M SICK AND TIRED OFBE world. Don’t give up, and don’t give in. only be n cut to the bone, but these un ING SICK AND TIRED?’ The easiest caring f cat maniacsare now cutting into thing for all ofus to do would be to close The notion that the Constitution has not the bo We can’t take much more of out our files, pack our bags, get a few lived up to its billing, and that the Bill of these e policies. hours of much needed sleep, put on our Rights is constantly undermined, it not power suit, that one nice outfit we have new. In fact, complaints about its impact Frederic Douglass is not alone in the not worn since joining the ranks of pov in the criminal justice system, and the criticis of our founding fathers in the erty law practitionersand show up Mon particular impact on Blacks and other way in hich the criminal justice system day at the plush law offices of DEWEY, minorities, women, gay and lesbian per has had a devastating thçact on poor CHEATEM & HOWE, and, during the sons, the disabled, the elderly, and the people. ustice Thurgood Marshall, dur uaditional power lunch, tell the hiring poor, are centuries old. The comments ing the r em celebration, pomp and cir pariner how much we look forward to made by Frederick Douglass more than a aims e in observance of the aimjver working in the corporate departmenthan century ago. are eerily reminiscentof our sary of ur Constitution, expressed con dlingmergersandacquisitions. Itsounds current malaise. In fact, some of the siderabi reluctance at the notion of tempting doesn’t it? problems of the criminal justice system "celebra ng" that venerable document. were brought to our attention more than Rather, lice Marshail called for a seri But I implore you to continue in your a century ago, near the timethat the Ken otis pe of examining the history, pur efforts to fight for the realization of the tuckyBill ofRights was adopted. Freder pose, an shortcomings of the Constüu Bill of Rights. Although what Iplan to ick Douglass, born a slave, but a freedom don in evolving society. Justice Mar say for the next few minutes does not fighter all his life, lamented about the shalino d: offer a pretty picture of the cunent state criminal justice system: of the Bill ofRights, we cannot give up. I do no believe that the meaning of the If notfor the struggles of Kentucky abo Justice is often painted with bandaged Consti ion was forever fixed at the licionists more than a centuryago, and the eyes. She is described in forensic elo Phil iphia convention. Nor do I find progressive and innovative advocates quence as utterly blind to wealth or the wi om, foresight, and sense of jus who fought for the creation of a public poverty, high or low, white or black.

JUNE1992 /TheMvocate 17 tice exhibited by the framers particu such a fashion that law enforcement offi xpecting to be ignored, or give chase larly profound. To the contrazy, the cers can ignore it at will. It is already so ing to be oumm, it fully suffices to government they devised was defective riddled with so many exceptions that it ly the deterrent to their genuine, from the start, requiring several amend has lost most of ks meaning and all its uccessful seizures. ments, a civil war and momentous so vitality. Many of us thought there was no cial uansfonnation to attain the system more damage that could be done. We J lice Stevens was notpersuaded by this of constitutional government, and its were wrong. r fling, commenting in dissent: respect for the individual freedoms and human rights, that we hold as funda One of the most precious rights of all In its decision,the Court assumes, with- mental today". citizens is the right to be left alone. The ut acknowledging, that a police officer more we see the encroachments on this ay now fire his weapon at an innocent What Frederick Douglas and Thurgood fundamental right, the more we under citizen and not implicate the Fourth Marshall tell us is that although the Bill stand when legal commentators refer to Amendment- as kxig as he misses his of Rights has played an important role in the Fourth Amendment as "ever shrink target. our society, we cannot overlook the harm ing." In Hodañ, that shrinking of the that has occurred to our client population protected zone reached new heights. In V both the majority and the dissent over these years. Indeed, in my view the Hodari, an unmarked police car was pa b th miss is what I would describe as the future of the Bill ofRights, as a document trolling a Black neighborhood in Oak odney King" ctor. There is no bubt designed to protect the thterest of the land, . Several Black youths 11 my mind that, after watching the tin people, is in serious jeopardy. From my were standing on the corner, when the n rciful beating of Rodney King. many vantage point, the Bill of Rights has be police, who were in plain clothes, but A ericans will not hesitate to run from come a "Bill of Wrongs." Your job as wearing jackets with "Police" embossed p lice, as a matter of sheer survival. As public defenders, and your efforts to de on the front andback, pulled up. The C alifornia State Assemblyman Curtis fend the indigents in the criminal justice young Black men began to flee. The ‘I ticker observed: "When Black people system, has become increasingly diffi officers gave chase. Hodari nearly ran II Los Angelessee a police car approach- cult. l’here was a time when we thought into an officer; tossed a vial of cocaine 11 they don’t know whether justice will our responsibility was simply to insure away, and was tackled by the officer, b meted out or whetherjudge, jury, and that our clients 4th, 5th, 6th, 8th and 14th handcuffed4 and charged with several of cecutioner is pulling up behind them." Amendment rights were fully protected. fenses. In a measured and persuasive We would do that by being vigorous in opinion, the California Court of Appeals I Wydliff was equally poignant, ob our investigation, zealous in our bail ar and the California Supreme Court con S ing: "Even Black men who share no guments, scrupulous in our research or cluded that an unlawful seizure occwTed, C er problem with the black underclass motions to suppress evidence, confronta and affirmed the suppression of the S e this one. The most successful, re tional in our efforts to challenge the gov seizedevidence. S table Black man can find himself in ernment’s evidence, and visionary in our a one-sided confrontation withacop who ability to develop imaginative and com Although Terry v. Ohio long ago told us, ti inks his first name is ‘tJiggef’ and his pelling theories of defense for our clients. among other things, that the Fourth L name is "Boy." Yet, our Supreme However, every step we have taken for Amendment covers restraints on the lib C tin has adopted a "no hann, no foul" ward, the Supreme Court and many State erty ofcitizens by police, Hodari refuses r le with respect to the Fourth Amend Courts, issue opinions forcing us two to follow that view. Moreover, in Flor II ient. If I don’t touch you, I haven’t steps backward. ida v. !?oyer, the Supreme Court real IInplicMed your privacy fights. Or, to finned these rights of respect and dignity F pbrase Katz v. United States, the cur Our task today then, as public defenders, to be accorded citizens by observing: r interpretation of the Fourth Amend- is to determine new strategies to insure I ntis that it protects neither Ic nor that the Bill ofRights is reinvigorated in The person approached need not an I laces. This assault on theSilo Rights a system that proclaims its commitment swer any question put to hint; indeed, I cked up steam this term in Arizona v. tojustice. he may decline to listen to thequestions A ulminante. In Arizona v. Fulminatue, at all and may go on his way. He may t e Supreme Court increased the power Thiswill notbe an easy task, nor are these not be detained even momentarily C f prosecutors to utilize coerced confes easy times. without reasonable, objective grounds 5 *ons, by invoking harmless error analy for doing so. 5 * in considering coerced confessions. Just this term, the Supreme Court has United States Supreme Court, in my engaged in a wholesale assault on every Before the ink completely dried on the jew committed fatal error, by revoking provision of criminal procedure in the opinion, the United States Supreme long held doctrine that coerced confes Constitution. The limited time I have Court, th an opinion by Justice Scalia, S ions are now subject to harmless error today doesn’t permit a full examination reversed. Justice Scalia’s reasoning was C Lnalysis. Not only does the Supreme of all the cases, or a complete and thor predictable and harsh: C:oun, by such decisions, undeimine the ough examination of each opinion’s ntegrity of our Bill of Rights, but more shortcomings. However, it should be said Street encounters always place the pub mportantly decisions such as Pu/mi that the assault on the Bill of Rights ex lic at some risk, and compliance with tame send a message to police that they tends from the moment of suspicion, un police orders to stop should therefore tie free to use whatever methods are nec der the Fourth Amendment, to the inflic be encouraged. Only a few of those ssary to obtain coerced confessions tionof the ultimatepunishment, under the orders, we must Pl1rTIe, will be with mowing that they are not likely to be Eighth and Fourteenth Amendments. out adequate basis, and since the ad xc1udedatthal. In an opinion that defies dressee has no ready means of identify ogic, the Supreme Court abandoned the For example, in Ca!fornia v. Hodari, ing thedeficient ones it is the responsi ixiomatic proposition that in a criminal theUnited States Supreme Court permits ble course to comply. Unlawful orders ase, a defendant if denied Due Process law enforcement to use a new weapon to will notbe deterred, moreover, by sanc f her conviction is founded, in whole or fight the waron crime, a weappn as lethal tioning through the exclusionaiy rule ,z part, upon an involuntary confession, as the most deadly gas at Dachau, by those of them that are not obeyct Since without regard to the mith or falsity of the interpreting the Fourth Amendment in police officers do not command "stop" onfession.

JUNE1992 The Advocate 18

.I For decades, the Supreme Court finniy ably set aside some that should have The Su reme Court has in effect ruled held the view that three forms of consti stood; so overall, justice was done." I that the failure to raise a claim at the state mtional error, nying a defendant before a sometimes think that is an appropriate court le rd will prevent you from having biased judge, depriving a defendant of analog to this court’s constitutional juris it consi tered on review. Many meritori counsel, and using a coerced confession prudence, which alternately creates ous cia xis will be ignored, and in some against a defendant, could never be cate rights that the constitution does notcon cases, nnocent clients will be put to gorized as harmless. However, after Ful tain and denies rights that it does." death. minante, prosecutors are licensed to use coerced confessions. In Fulminante’s Thus, we are moving closer to that dual It goes Nithout saying that this was an case, he was incarcerated, and peiist society, those who are treated justly and ticipate 1. Not only has the Supreme ently pursuedby a governmentinformant those who are frequently victims ofinjus Court ‘ade our job difficult from the seeking evidence of a crime, with the tice. I have great confidence in public momen ofaffest, but it also has restricted constant admonition to Fulminante of the defenders. Jam confident that even after our ret tedies throughout the appellate ill that would befall him if he did not the Supreme Court allows police officers process I suspect some of you are saying, confess, and let the informant protect to illegally seize your client, coerce con why sib uld I continue to do this work? him. Fu1nnante confessed, and the fessions from your client, and deny you "protectiont’ he mceived was a prosecu the opportunity to talk with him for 48 There re a number of good reasons. don for murder, and this confession was hours, that you can still be zealous advo What Li e Supreme Court has done, and introduced at trial. Fortunately, for Ful cates. Unfortunately, the Supreme Court its assa It on the Bill ofRights, is to make minante, a majorityof the Supreme Court has gone even further in assaulting the the cha lenge even greater for us. What reversed his conviction. Unfortunately Bill ofRights by tying our hands, behind can we lo? There are a number of things for the rest of the world, the harmless our back, blindfolding you, and then ask we can nd must do. First, MeCleskey v. error analysis will now be applied to fu ing you to reach for the correct box that Zant, oi the one hand, deprives clients of ture coerced confessions. One wonders will free your client. In the most recent the op ortunily to have compelling how long it will take the Supreme Court expression of nonsense, the Supreme claims: used when they are discovered, to find convenient vehicle to eliminate Court held that bilingualism is not an butont otherhanditisthepreciSCtiflfl the remaining exceptions to the harmless accomplishment to be praised for those and cle r authority that we need to file error rule. In the not too distant future, who put in the effort to learnEnglish, but every S ugle motion, mise every single perhaps a biased judge, or the absence of is a source of potential disqualificatibn in issue, 1 tigate every matter, no matter counsel, won’t provide grounds for com jury service. Later in the term, in Her how pn mature, or incomplete at the that plaint. nandez v. New York,the Supreme Court phase. L ather than raising the usual 4 or upheld the ability of prosecutors to strike 5 issue, we must now raise 15 or 16. But it doesn’t stop there, theBill ofRights jurors who were bilingual becauseof the And w must indeed cite McCieskey v. underwent a further assault when the risk that they might interpret statements Zant as elling us that if we don’t raise it United States Supreme Court decided made in a case inconsistent with the in now, it I forever waived. We must argue, County of Riverside v. Mclaughlin. Not terpretations provided ifanslators. While in case Iter case, how these arrests dis only are the police allowed to seize you, some of you may see this as a small and wopoit nately impact minoritiesand the and coerce a confession from you, but innocuous case, it really goes to the heart poor, al d persuade judges that it is so. they also are now authorized to deny of our criminal justice system. For dec We mw talso show how coerced cozies indigents the right to an arraignment for ades, Spanish speaking people in general sions & iy our clients equal protection of 48 hours. It is absolutely clear that this were denied the opportunity to be jurors the law, and due process. We mustshow case, like so many others decided this because they could not speak English. that pc ‘erty, not administrative effi term, will have a disproportionate impact Now that they can master English, they ciency, s the victimof the 48 hour deten on blacks, the poor and the underprivi are being punished because they speak tion nil . We must show that the Her leged. In upholding the delay in Spanish. There are three responses for nandez ule has the impact of disenfran McLaughlin’s arraignment, the Supreme advocates to consider in assessing the chising the fastest growing segment of Court Observed: absurdity of Hernandez: 1 the court our div se population and in the end, it didn’t inquire whether whites also spoke will be rnpossible to allow such exclu "Everyone agrees that the police should Spanish; 2 there is value in insuringthat sions. Ve must examine the disparate make every attempt to minimize the time thterpreters accurately presenttestimony, impact f the criminal laws, as Judge a presumptively innocent individual and if there are differences, the inter AIexan er did recently in Minnesota, spends injail. One way to do so is to preter may be engaging in a miscarriage conclud ng that certain penalties were provide a judicial determination of wob of justice; 3 if there is conflict in a discrimi iatory against minorities. able cause immediately upon completing translation, jurors can bring it to the the administrative steps incident to ar judge’s attention via a note and the dis Perhaps over the course of the next dec rest..." As the dissent explains, several crepancy can be cleared up. I cannot ade, and hopefully much sooner, trial and states, laudably, have adopted this ap imagine a more senseless expression of appellat judges will tell the Supreme proach. The Constitution does notcom racial and ethnic chauvinism than the Court U at these pronouncements, as a pel so rigid a schedule, however. courts’ tortured analysis in this case. whole, t ridiculous and that the impact Thus, not only will your client be seized, on the si Lte courts, investigators, sentenc In an interesting dissentby Justice Scalia, but a confession can be coerced from ing adV cates and public defenders ne he relates a story that, regrettably, de your client, and your client, based solely cessitatt litigating every single issue at scribes the Supreme Court’s Bill of on poverty, will be denied access to a every ju ctureof the ulal, with the result Rights jurisprudence. judicial officer for 48 hours, and your possibi bringing the criminal justice efforts to get a representativejury will be system t a grinding halt. If this is what This term: the story is told of the elderly denied, If you have the misfortune of it takes, hope that each and every one of judge who, looking back over along Ca going to trial and your client is convicted, you are Tepared for the task. reer, observes with satisfaction that you then encounter the Supreme Court’s "when I was young, I probably let stand last expression of utter nonsense, Mc What wi have witnessed at the Supreme some convictions that should have been Cleskey v. Zant. In McCleskey, the Su Court is just a small part of the woblem overturned, and when I was old, I prob preme Court has finally gotten its wish. in the c. iminal justice system and the

JUNE 1992 IThe Advocate 19 .t

burdens it places upon public defenders Harvard Law School Georgia and serves on theDefender Corn and other advocates for indigent defen 208 Griswold Hall ,nittee ofNLADA. dants. Throughout the program today, Cambridge, Massachusetts 02138 we will focus on other methods to fight 617 495-5097 These remarks were made at the 1991 Ken this erosion of the Bill of Rights. The tucicy Department ofPublic AdvocacyBill struggle must continue. Professor Ogletree is an Assistant Profes of Rights Cor!ference. sor of Law at Harvard Law School and There is major work that must be done. serves as Director of the Criminal Justice You are the chosen few. Let us begin. Institute arid TrialAdvocacy Workshop. He Thank You. formerly served as a public defender in Washington, D.C., holding positions of Training Director, Trial ChiefandDeputy [LII Director. He won a unanimous reversal in ChARLES J. OGLETREE a capital case before the United States Associate Professor Supreme Court MIS pasi term Ford v. ‘T51 w[ioJw yLw&s SVPfl9t’12 C&UQT When the Constitution created the federal For the first three years, meeting in New judiciary, the country’s state and local courts had York and then in Philadelphia, the Supreme Court already been in existence for generations, an heard no cases. But its six members were kept important Legacy from colonial times. Then, as busy, traveling the roads of America as they now, these courts conducted almost all of the presided over both trial cases and appeals in the judicial business. The federal courts would handle circuits. Under the Judiciary Act, two Justices cases dealing with the violation of federal law or were assigned to each of the three circuits. Travel as otherwise specified by the Constitution. in those days was difficult, sometimes hazardous. sometimes travel together by Article III of the Constitution defined the The Justices would horseback or carriage, usually over poor roads. judicial branch of government in three brief complained of circuit riding as sections, but it was the Judiciary Act of 1789 that Justice Iredel "leading the life of a Postboy." Today, the federal created the federal judicial structure of 13 district circuit courts have their own appointed judges. courts, three ad hoc circuit courts, and the office of Attorney General, and provided for Supreme In the first decade of the Supreme Court, only Court review of state court decisions that dealt about a dozen cases received written decisions by with federal issues. the full Court. Although established, the Court’s was yet to be determined. Like the The first Chief Justice of the United States, authority English practice, the Justices issued separate John Jay of New York, was a staunch Federalist. which tended to be confusing, even when A leader in New York’s ratification battle, Jay opinions, the Justices agreed on the result. joined with James Madison and Alexander Hamilton to author The Federalist When John Marshall was appointed fourth Papers, in support of ratifying the Chief Justice in 1801 by President John Adams, Constitution. the Court’s voice became stronger. In 34 years as he heard over cases, writing The other members of the Chief Justice, 1,000 than 500 opinions himself, many of them first Supreme Court were John / more "building blocks" of today’s constitutional law. Rutledge of South Carolina, - Under Marshall’s leadership, the judiciary James Wilson of Pennsyl as a respected, co-equal vania, John Blair of emerged branch of the federal government. Virginia, William Using this newly invigorated Cushing of Massa power, the Marshall Court chusetts, and helped to strengthen the James Iredell ability of the federal of North government to deal Carolina. with problems and issues of national concern.

First Homeofthe Supreme Court Royal Exchange Bafildrng New York City, NY

From ‘To Establish Justice" a pamphlet published by the Commission on the Bicentennial of the United States Constitution.

JUNE1992 IThe Advocate 20 THE MOST PRECIOUS BATTLE PLAN OF ALL OUR BILL OF RIGHTS

Judith G. Clabes

Americans rallied ‘round American All that is earned so far is the possibility Without the right to receive these expres troops in a massive allied effort in the of making it work a little longer. sions of others, our own freedom of ex Persian Gulf in the fall and winter of pression is limited. This inherent right to 90-91. America, unquestionably a world The test of democracy was not passed in know enables us to understand and par superpower, led the fighting forces that the Saudi desert. It continues every thy, ticipate in the issues of the thy, whatever liberated Kuwait. very close to home. it is never done. This they are. It is our to think and con Constitution is not a self-executingdocu clude. Without it, we are fooled by the We fought for "democracy" because ment. charade of freedom. Freedom of expres that’s what we stand for and not because sion is the road upon which disparate that’s what Kuwait is, because it isn’t. To Essential to a successful democracy is a voices and ideas in America have trav Americans, "democracy" often is ex well-informed citizenry - and an in elled to liberty. trapolated to mean standing up for the volved one. Yet deep apathy at times underdog, the oppressed, the mistreated, seems to threaten the health of a hard- The First Amendment alone is a the disenfranchised. And, in that sense, fought self-governance. This apathy ap pourri of basic ingredients of individual we fought for "democracy" in the pears in poor voter turnout, a public liberty, expressing as it does give great Mideast. choosing to shut outthe issues of the thy, civil liberties: freedom of religion, free acitizenry unfocused on its governance, dom of speech, freedom of press, free In addition to all else, America did show a people turned outto the plight of neigh dom to assemble, and the right to petition that democracies can be strong and reso bors, or in the general disconnectedness for a redress of grievances. lute. This was a bitter lesson for those of communities. who misunderstoodand grossly underes Oliver Brownunderstood the importance timated the power of democracies to act John Gardner of Common Cause of the latter. He didn’t believe his daugh decisively. And the capability of democ sounded this alarm: "Communities have ter should have to go to a "black" school racies to produce people willing to do so been disintegrating for a long time, and a mile away when the "white" school was of their own free will. the sense of community is increasingly closer to home. Brown v. Board of Edu rare. A steadily increasing proportion of cation also showed that the Constitution Just 200 years ago, in the fall and winter our people do not belong to any commu is an evolving, living thing in an America of 1790-91, a different kind of American nity. They float around like unconnected where justice and fairness matter. rally was going on. It, too, had wide atoms; they have no sense of common spreadpopular support as an infant coun venture." Seeds of tyranny spring up, not just in try was laying a solid foundation for a distant lands, but in our own - in the kind of self-government never before A sense of common venture is what form of censorship, limitations on the seen. The topic of that time was the Bill makes democracies work. rights of minorities, government secrecy, ofRights, important amendments to the in acceptance of the idea that public offi new Constitution that would guarantee Of all the freedoms Americans cherish, cials should be insulated from criticism certainindividual rights that government freedom of expression is the keystone, or accountability. These may seem small could never take away.The Bill ofRights crucial to all others. It involves more than things in comparison to massive coalition is a bill of restraintupon the government: the right to communicate ideas, beliefs ground and air assaults on evil Iraqi It places certain rights above and beyond and information. More than the right to forces. the reach of majorities and officials and carry a placard in protest. More than the establishes them as fundamental legal right to write a letter to the editor, appeal But they are important, on-going skir principles. The divine right of kings or to the courts, complain to the mayor, mishes in the struggle to keep America crown princes or born-royalty was for criticize the president, or boycott a brand what our founding fathers intended it to ever set aside in the new American order. of gasoline. It involves responsibility, be. Just 200 years ago when they pre too. sented us with the most precious battle plan of all: The Bill ofRights. Two-hundred years is not a very long It embodies the right to receive ideas and time, a grain of sand perhaps in the Saudi information, to evaluate these with our ROOTS OF OUR BILL OF RIGHTS desert. Yet, democracy, and the republic consciences and intellect, to accept or on which it is built, has brought America reject or form another opinion. It involves When the American Colonies achieved into its adolescence a strong, rich and the responsibility fordefending the rights their independence, they were a loose powerful country. Nothing is proved, of of others to express opinions with which association ofindependent states held to course, and adolescence is a testy time. we disagree. gether by the Articles of Confederation. This first constitution proved unwork

JUNE1992 IThe Advocate 21 able for the needs of a union of states,but survival for the newly independent * Roger Sherman of was the it served as a bridge between the initial United States. He continued to press for only individual to sign the Constitution, government by the Continental Congress a Bill ofRights as essential to insulate the theDeclaration of Independence andthe of the Revolutionary period and the fed people from oppressive government. A Articles ofConfederation. He handwrote eral government provided by the United close friend of George Washington, Ma a working draft of a bill of rights. States Constitution of 1787. son was described by Thomas Jefferson as being "of the first order of greatness." * The Founding Fathers were diverse. Of As the founding fathers sweated through the 55 men, 34 were lawyers, 29 were the sultry summer of 1787 in Philadel college graduates; the average age was piña- working in secret- they created Thomas Jefferson himself - though in 42; 14 were land speculators; six had a government with three branches, each Paris at the time - pressed for a Bill of signed the Declaration ofIndependence; with powers to check the others. There Rights from afar. In a letter to Madison, 21 were military veterans of the Revolu was no country in the world that gov he wrote: "Let meadd that a bill of rights tion; 15 owned slaves; 24 served in Con erned withseparatedand divided powers, is what thepeople are entitled to against gress; the youngest was 29; the oldest providing checks and balances on the every government on earth, general or Ben Franidin was 81. exercise of authority of those who gov particular, and what no just government erned. But the foundin fathers, having should refuse, or rest on inferences." * Since 1789, more than 10,000 amend lived through oppression of liberties, ments have been offered in Congress. braved a revolution for just such a gov Jefferson and Mason had more accu Only 33 of these have been sent to the ernment - by the people, for the people rately assessed the mood of the people, states for ratification. and of the people. for the strongest opposition to the new Constitution surfaced overthe absence of * Since 1791, when the Bill of Rig/us was The work of those 55 men marked the a bill ofrights. States passed strong reso ratified, only 16 other amendments have beginning of the end for the concept of lutions demanding the Constitution be been approved. the divine right of kings. amended to include a strong declaration of rights. In every instance, freedom of A great debate ensued during the delib the press was an expressed concern. Peo erations over the new Constitution. It ple simply wanted written guarantees of Betrayed by Kuwait’s ‘justice’ centered on a Bill ofRights. Should it or individual liberties against a powerful should it notbe included? federal government. Kuwait’s attitude toward rebuilding its shattered infrastructure may strike James Madison, who would be known as Fearing for the survival of the Constitu many as excessively casual; but when the father of the Constitution, opposed a tion and facing opposition in his cam it comes to dispensing Draconian jus bill of rights in the convention. He be paign as a representative to the first Con tice, the Kuwaitis march to a very dif lieved everyone agreed that individual gress. James Madison changed his mind. ferent drumbeatindeed. rights would be secure in this new soci lie promised the voters of Virginia that not send 540,000 ety. The fact that these rights weren’t he would push for a bill of rights - and The United States did spelled out did not mean they did not he rose in the very first session of the of its best and brightest to make the exist. Besides, he argued, 8 ofthe then 13 House of Representatives to propose world safe for potentates. states had bills of rights in their own amending the new Constitution "in order constitutions. to preventmisconstruction or abuse of its A military tribunal prohibited wit powers" and to extend "the ground of nesses from testifying and did not per "Publius," the name used by John Jay, public confidence in the government." mit defendants to meet with their gov James Madison and Alexander Hamilton eminent-appointed attorneys, who saw to write the Federalist Papers to garner There were originally 12 amendments them for the firsttime in court. Defense support for the Constitution, also argued known as the Bill of Rights. The first 2 attorneys were forbidden to cross-ex against the need for a bill of rights. dealt with congressional amine witnesses, clients’ evidence was and with compensation for members of kept secret and some defendants The most impassioned pro-bill of rights Congress. They failed. Thus, the "Arti charged their confessions had been co stance came from George Mason, a cle the Third" moved up to "Article the erced by torture. wealthy Virginia planter with no formal First," and the 45 enduring words of the education, who had written Virginia’s First Amendment have fundamentally The so-called trials makea mockery of Declaration of Rights. in June, 1776, shaped individual liberties throughout Western notions of justice and consti George Mason’s Declaration of Rights our history. tute a cynical betrayal by the Kuwait had been embodied in Virginia’s new and Saudi Arabia owe not only their their very hides, to Ameri constitution - and served as an inspira New Jersey was the first state to approve thrones, but tion forThomas Jefferson as he drafted a the bill on November 29, 1789; Virginia can resolve and military skill. The national Declaration ofIndependence. became the ninth state to ratify amend world community should not passively ments 3 to 12 on December 15, 1791 - permnit them to resume their bad old Mason was an active member of the con and the Bill of Rights joined the Consti ways without expressing its disap vention and when a billof rights was not tution in providing a framework for na proval in the strongest possible terms. included, he told his colleagues that he tional governance. "could neither give it his support or vote This editorial is from The Sun-Senti in Virginia" and "he could notsign here BILL OF RIGHTS FACTS: nel, Fort Lauderdale, Fit Guest edito what he could not support in Virginia." rials do not necessarilyreflect the view * Seven counties of the KentuckyTerritory point of the Herald-Leader. When the Constitution was signed on of Virginia sent 14 delegates to theratifi September 17, 1787, therefore, George cation convention - and 10 voted to Mason refused to sign it, despite his con reject the Constitution; viction that the strong central govern ment it established was the only hope of

JUNE1992 /TheAdvocate22 * Each provision in the Bill ofRights was * The first census in 1970 counted 4 million Judith G. Clabes Lv editor of The Ken- included in at least one of the constitu- Americans. tucky Post, where this article [v-st ap tions of the states: 12 state constitutions peared. She spoke at the 1991 Annual protected the free exercise of religion, 10 * Of the 13 original handwritten copies of Public Defender Coi’ference in Coving- protected freedom of press, 5 protected the Bill of Rights. only 8 are known to ton. freedomof petition, 4 protected freedom exist today. of assembly, 2 protected freedom of speech. JUDITH G. CLABES Edilor * The United States of 200 years agoended The KentuckyPost at the Mississippi and was still about 15 Madison Avenue times the size of England. Covington, KY 41011

TM TJ9IPEV5T54OYE3 BILL OflI91TS

WHEN theConstitution was signed on September 17, 1787, it containedno Bill ofRights. In fact, the idea of adding a Bill of Rights was not even mentioned on the floor of the Constitutional Convention until five days before the document was signed. George Mason, who had written Virginia’s Declarationofflights in 1776, argued in vain for theinclusion of such aprovision. The George Mason majority felt that to list specific individual rights was unnecessary, however, and theproposal was defeated.

DURING the battle over the ratification of the Constitution, those opposed the Anti-Federalists- argued that the Constitution needed amendments to guarantee individual rights and freedoms before it could be ratified. Proponents of ratification-- the Federalists-- contended that most state constitutions already guaranteed such rights. And the Constitution itself guarded against tyranny by its separation of powers among the three branches of the federal government and division of powerbetween the federaland state governments, together with specificguarantees already in the Constituiton, such as therightof the writ of habeas corpus. Moreover, thosewho opposed a federal Bill ofRights feared that any incomplete enumeration of certain rights endangered those inherent rights not specified.

ONCE theAnti-Federalists organized their campaign, it took the promise of a national Bill of Rights to secure narrow Federalist victories in such key states as Mas sachusetts, Virginia and New York.

ON May 4, 1789, with the First Federal Congress only one month old, Representative James Madison of Virginia-- who had opposed aBillofRightsat the Philadelphia Convention-- proposed thatdebate on amendments to theConstitutionbegin at theendof themonth. Madison then revised the210 suggested amendments submitted by thestates and, onJune8, proposed eightamendments, several with language similar to George Mason’s Virginia Declaration of Rights.

Madison proposed that each amendment be placed in the Constitution in the article and section where it pertained. But at the insistence of Roger Shennan, the House chose to add amendments to theConstitution in numerical order, as they are today.

AFTER considerable debate, the House on August 24. approved 17 proposed amendments and sent them to the Senate. The Senate debated and finally, on September 25, 1789, agreedwith the House on 12 proposed amendments. These were submitted to the states for ratification, a process that took two years. On December 15, 1791, Virginia became the eleventh state to ratify ten of James Madison the twelve proposed amendments, and these, known as the Bill of Rights, became part of the Constitution.

THE Bill ofRights and subsequent Amendments have made our Constitution a beacon to the rest of the world-- especially evidenced at this time in Eastern Europe-- by providing a model far a political system that effectively guarantees therights of the individual.

From "The Bill of Rights and Beyond," a pamphlet published by the Commission on the Bicentennial of the United States Constitution.

JUNE 1992 IThe Advocate 23 GEORGE MASON AND HIS DECLARATION OF RIGHTS A Presence in Kentucky

John D. Miller

The Virginia Declaration of Rights

A DECLARATION OF RIGHTh made by the representativesof the good people of Virginia, assembled in full and free Convention; which rights do pertain to them, and their posterity, as thebasis and foundation of government.

1. That all men we by natwe equallyfree and independent, and have certain inherent rights, of which, when they enter into a state ofsociety, they cannot, by any compact, deprive or divest theirposterity;nasnely, theenjoyment oflife and liberty, with the means ijacquiring andpossessing property, andpursuing and obtaining happiness and safety.

2. That all power is vested in, and consequently derivedfrom, the people; that magistrates we their trustees and servo-nit, and at all times amenable to them.

3. That government is, or ought to be, inetitutedfor the common benefit, protection, andsecurity, of the people, nation, or community, ofall the various modes andforms ii government that is best, which is capable ofproducing the greatest degree ofhappiness andsafety, and is mast effectually secured against the danger ofmat-administration,’ and that whenever any government shall befound inadequate or contrary to these purpases, a m4iority of the conununity bath an indubitable, unalienable, and indefeasible right, to reform, alter, or abolish it, in such manner at shall bejidged mast conducive to the publick weal.

4. That no man, or set of men, we entitled to exclusive or separate emoluments or privileges from the co,rvnunity, but in consideration ofpublick services; which, not being descendible, neither ought the offices of magistrate, legislator, orjudge, to be hereditary.

5. That the legislative and executive powers ofthe stateshould be separate anddistinctfrom thejudiciary; and, that the members ofthe twoflrst maybe re-ctrainedfrom oppression. byfeeling and participating the burthens tjthe people, they should, atfixed periods, be reduced to aprivate station, return into that bo4afrvmwhich they were originally taken, and the vacancies be supplied byfrequent, certain, and regular elections, in which all, or any part of theformer members, to be again eligible, or ineligible, as the laws shall direct.

6. That elections of members to serve as representatives of the people, in assembly, ought to befree; and that all men, having 57401c ent evidence ofpermanent common interest with, and auaclunent to, the community, have the right of s,q°frage, and cannot be axed or deprived oftheirpropertyforpublick uses without their own consent, or that oftheir representatives so elected, nor bound by any law to which they have not, in like manner, assentedfor the publickgood.

7. That all power ofsuspending laws, or the execution of laws, by any wAthority without consent ofthe representatives of the people, is injwious to their rights, and ought not to be exercised

8. That in all capital or criminalprosecutions, a man bath a right to demand the cause and nature of his accusation, to be confrontedwith the accusers and witnesses, to catlfor evidence in his favour, and to a speedy trial by an imparti aljury of his vicinage, without whose unanimous consent he cannot be found guilty, nor can he be compelled to give evidence against hhnre4f that no man be deprived of his liberty except by the law ofthe kind, or the judgment of his peers.

9. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

10. That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence ofafact committed, or to seize any person or persons not named, or whose cifence is not po,rticularly described and supported by evidence, we grievous and oppressive, andought not to be granted.

II. That in controversies respecting property, and in suits between man and man, the ancient trialbyjüry is preferable to any other, and ought to be held sacred.

12. That the freedom ofthe press is one ofthe greatbutwarks of liberty, and can never be restrained but by despotic governments.

13. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of afree state; that standing armies, in time of peace, shrjrald be avoided, as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.

14. That the people have a right to uniform government; and therefore, that no government separate from, or independent of, the government of Virginia, ought to be erected or established within the limits thereof

15. That nofree government, or the blessings of liberty, can be preserved to any people but by aflnn adherence to justice, moderation, temperance,fnegalzo’, and virtue, and by frequent recurrence tojia,damentat principles.

16. That religion, or the duty ..tch we owe to o CREATOR, and the nnnner of discharging t can be directed only by reason and conviction, not by force or violence; and therefare alt nwn are egralty ensuted to the free exercise ofretigion, according to the dictates of conscience; and shot Lii, the n,utuat duty of alt to practice christü nforbearance, tow, and chart, towards each other

JUNE1992 IThe Advocate 24 JUNE 1992 ITheAdvocate 25 I- This eloquent manifesto, drawn by the boycott of English goods and de Mason, leaving him withnine children to George Mason, a Virginia planter shy of signed, inter alia, to combat taxation whom he was "father and mother both." formal education but steeped in the his without representation. The resolution His shunning of public life warranted tory of humankind, is the blueprint of a was introduced into the Virginia House description by biographer Robert A. Rut republic. The didactic proclamation that of Burgesses in Williamsburg by his land as the "Reluctant Statesman." "all men are by nature equally free and friend, Washington, causing royal Gov independent," entitled to "the enjoyment ernor Lord Botetourt to order the disso Nevertheless, in keeping with his com of life and liberty" and to "pursuing and lution of the assembly, whereupon the mitment, Mason, accompanied by his son obtaining happiness" is the creed of free members adjourned to the Raleigh Tav John, arrived in Philadelphia on May 17, people everywhere and forms the infra em across the street and hastened their three days after the convention was origi structure of democratic government. In rebellious efforts. Again, in 1774, Mason nally to commence. Dressed in fine black June 1776, but a few days before our authored twenty-four Fairfax Resolves silk and ravelling in a carriage befitting separation from England, these princi which Chainnan Washington read at a landed wealth, Mason’s presence was in ples, called by Mason a Declaration of meeting of the county’s freeholders. deed imposing. He bore a certain air Rights, were embodied in Virginia’s These resolves clearly stated the colo about him that led the rankest stranger to Constitution and served as a beacon for nists’ in relation to Britain on know he bad approached a man of stand Thomas Jefferson when drafting our na matters of representation and taxation, ing and importance. He and son John tional Declaration of Independence. and made a strong denunciation of slave took accommodations at the Indian trade. Although Mason, as well as Wash Queen Tavern at 4th and Market Streets, AndsoitwasonadayinJune 1789that ington, was a slave owner, his anack on a noted stae terminal for the travelling diminutive James Madison, the nar that institution was a position he vehe elite. Washington and Madison were al rowly-elected Virginia representative, mently demonstrated at the Constitu ready in attendance, as well as four other arose with customary genius in the very tional Convention four years later. Ma Virginia deputies of imposing stature. first session of the House of Repre son denounced slave trade as "wicked, Virginia’s seven-memberdelegation was seritatives assembled in New York and cruel and unnatural," and considered second innumber only to that ofPennsyl proposed amending the new Constitu slavery both morally wrong and an im vania. Two famed Virginians were con tion. Early amendment of the Constitu practical labor force for the nation. From spicuously absent: Patrick Henry, who ion was desired "in order to prevent mis these times on, Mason’s views of govern chose not to serve, and the incomparable construction or abuse of its powers" and ment and mankind were etched along the Jefferson, at the time our consul in to extend "the ground of public confi road to revolution and establishment of France. By the twenty-fifth of May, the dence in the Government," Congress the new nation. states were represented by quorwn. Ulti quickly considered Madison’s efforts mately. 12 of the 13 states would partici and on September 25. 1789, proposed Mason caine to own thousands of acres pate. Rhode Island, fearing inundation at twelve articles of amendment to the Con of western land, much being in the then- the hands of larger states, declined to stitutionof the UnitedStates. On Decem unformed state of Kentucky in and send representatives. ber15, 1791,thefmaltenoftheproposed around what is now Owensboro in Davi amendffients were approved by Virginia, ess County. It is particularly appropriate Madison, a graduate of the College of the last ratification necessary to make that we as Kentuckians know more of New Jersey Princeton, held plans in his them a part of our Constitution. now Mason and his impact on our federal ubiquitous valise for a tripartite govern known to every school child as theBill of Constitution and what might, in great ment of the people - a variety unprece Rights. These amendments, too, embod measure, be called his gift of the Bill of dented in the history of civilization. ied Mason’s Declaration. The mind of Rights. These plans, subsequently introduced by Mason became forever embedded in our Virginia compatriot Edmund Randolph, Constitution. When the Constitutional Convention was formed the anvil for forging the new re to assemble in Philadelphia on May 14, public. Many are unaware of the values embod 1787, the second Monday of that month, ied in the Bill of Rights and why the for the limited purpose of amending the Sweltering heat gripped the summer from amendments were offered at such an Articles of Confederation toward end to end. flies were atrocious, by some early date when the fledgling govern strengthening the confederacy in areas of accounts requiring the sweeping of pub ment was grappling with extant issues commerce, defense, and revenue, the lic floors throughout the day to remove pertaining to foreign affairs, commerce, Virginia legislature had designated Ma dead carcasses. Mason, comfortably en debt, and the onerous task ofelevating the son a deputy. After reflection, he ac sconced at the Indian Queen, gave pierc new republic to world status. Both the cepted the commission and prepared to ing attention to the foundation of the new values and the urgency to an immeasur attend. nation. His attendance was extraordi able extent can be laid to the same gout- nary. He spoke to virtually every aspect ridden Virginia planter, a man described Mason was supremely attuned to the art ofthe Constitution, taking exception and by Thomas Jefferson as "of the first order of government. He possessed a volumi offering incisive advice to those of more of greatness," yet never elevated to a nous library, shelving works of the fonnal accreditation, always demonstrat proper position in history. world’s leading philosophers and schol ing a fear of an overly-strong govern ars. His formal education was tutorial as ment, too far removed from the people, Mason’s life [1725 - 1792] spanned the mandated by the Piedmont gentry of his that might someday oppress human greater part of the 18th Century. He was age. Mason had never travelled so far rights. Mason characteristically left be a person ofextraordinary wealth residing from home as would be required of the hind a record reflecting a mind distrustful at Gunston Hall on the Potomac in the five-day tripby private coach to Philadel of authority. His effort in forming a Con vicinage of George Washington’s Mount phia. He was, indeed, provincial by any stitution to check unbridled power of Vernon. He and Washington were life standard. Moreover, he eschewed gather those privileged to govern was monu long friends and adjoining landowners, ings, conventions, and, in general, the mental, easily comparable to Madison political arena. On occasion, he had and Jefferson, the latter acting vicari* Mason first advanced to public promi begged pardon of participating in public ously from abroad, nence in 1769 as author of Virginia’s affairs by reason of near-insufferable Non-Importation Resolutions calling for gout and the loss ofhis wife, Ann Eilbeck As the summer dragged on, Mason be-

JUNE 1992 ITheAdvocate 26 came disenchanted with the direction of duced the argument not to whether the tution and its Bill of Rights. With a few the convention. It became apparent the Constitution would be ratified, but other amendments relating largely to Constitution would be submitted to the whether it was to be amended by a Bill of constricting the federal judiciary, he states for ratification without his Decla Rights before or after ratification.Origi wrote, "I could cheerfully put my hand & ration. This and lesser objections led him nally, Randolph, one of the three not heart to the new government." to join with fellow-Virginian Randolph signing the document in Philadelphia, and Massachusetts’s Elbridge Gerry as supported the Anti-Federalist Henryites Although Mason’s contribution to our three deputies in attendance on Septem in holding for amendmentbefore ratifica Constitution is quintessential, it is certain ber 17th who would not sign the proposed tion. He vacillated, however. Finally, he that world scholars and historians are Constitution. left the ranks of Anti-Federalists and more acquainted with his amazing mind opted for amendment subsequent to rati than are the people of this Common Mason maintained that a Bill of Rights fication. On the convention floor, Henry wealth. His views on government had was essential to insulate the people from delivered what, in modem terms might be immediate impact upon our Declaration oppressive government. Opponents considered a "sellout" charge. Randolph of Independence and the 1789 French pointed out that the Constitution already responded appropriately. Almost imme Declaration of the Rights ofMan ant/the contained personal safeguards, such as diately, Henry’s second called upon Ran Citizen. Post World War 11 constitutions, preservation of trial by jury in criminal dolph for satisfaction upon the dueling the United Nations charter, and indeed cases, condemnation of ex post facto field. Friends intervened and a probable free governments of the ensuing two hun laws, and maintenance of the ancient writ tragedy was averted. dred years have emulated Mason’s of habeas corpus. Moreover, they con views. When emerging democracies con tended the Constitution itself and the es In France, Jefferson was dismayed that sider constitutional government, they are tablishment of the republican govern the Constitution was submitted for ratifi inextricably drawn to the blueprint left by ment presupposed that Mason’s enumer cation without a Bill ofRights. A letter to the Virginia planter. ated rights already existed in each indi Madison reflects his position. vidual and that to enumerate them within Mason’s presence in Kentucky is marked the Constitution was superfluous. Then, Let me add that a bill of rights £! what thepeople by ownership of vast tracts of land on the too, it was suggested that the enumeration we entitledto against every gu’ernmen: on earth, waters of Panther Creek in Daviess of such rights in a bill to the Constitution general orparncular. andwhat nojustgovernment County. That creek, finding its source in might mislead future generations into shoi4dr4ltse, or rest on inferences. the thin hill country east of Daviess thinking those were the only rights held County, is a zigzagging tributary of by the people. For whatever their individ On December 7, 1787, Delaware, by u Green River. It traverses the entire ual masons, the assembled states on that nanimous vote, was the first state to adopt county, intersecting the Green at Curds September day unanimously sent forth the Constitution. On June 21, 1788, New ville, west of Owensboro, at a point just the proposed Constitution consisting of Hampshire, by close count, became the briefly before the Green empties into the seven articles without Mason’s Declara ninth and final state necessary to place Ohio. Today, the lands adjacent the creek lion ofRights. The documentwas submit the documentin effect as the Constitution are some of the Commonwealth’s fmest ted to the respective states forratification. of the United States. On June 25, Ma soil given to the raising of cattle and the son’s Virginia, as the tenth state, voted production of fme , corn, wheat, Chagrined and dismayed, Mason left in approval with 89 yeas and 79 nays.. Ma and soybeans. In Mason’s day, the land, considerable huff. En route home, he suf son, Henry, and the Anti-Federalist yet a part of the Commonwealth of Vir fered a carriage accident in Baltimore. movement had failed. Or had they? ginia, was "waste" and "unappropri Convalescing at Gunston Hall and fum ated." ing over his rebuff in Philadelphia, Ma Several states approved the Constitution son joined forces with the redoubtable very narrowly, premised upon the under In 1779, while Mason was engrossed in Patrick Henry in a campaign opposing standing that a Bill of Rights would be public concerns, the Virginia legislature ratification of the Constitution. It was forthcoming. North Carolina withheld opened lands along Panther Creek and disseminated throughout the states that ratification until November 21, 1789. af the Ohio River for purchase. Any person Mason "would sooner chop off his right ter Congress had proposed a Bill of paying into the Virginia treasury "forty hand than put it to the Constitution" as Rights. The nation’s pulse was throbbing pounds" per one hundred acres would written. This was Mason’s way of pro in favor of a bill restricting the new and receive a certificate which, when pre testing the absence of a Declaration of untried government. sented to the land office, entitled that Rights which he believed indispensable person to a "land warrant" for described in safeguarding the "free and inde It is now apparent why Madison arose in acreage. The warrant authorized the sur pendent" and "inherent" rights of man the initial Congress to offer proposals veying of the boundary purchased. The against government. embodying Mason’s manifesto destined, stated purpose of the legislature was to in measure, to become our Bill ofRights. sell the waste and unappropriated lands * Mason’s forces, known as the Anti-Fed- His honor was at stake, for in the heat of for the raising of revenue needed to dis * eralists, were fonnidable, but no match seeking ratification, he had committed charge public debt and, at the same time, for the Anti-Federalists. Henry’s chann himself to offer those amendments. By encourage migration into the area. Mason * ing oratory and the political savvy of that time, however, he had clearly suc was one of the first to purchase under the Mason were not equal to the genius of cumbed to Mason’s notion that a Bill of law. Madison, Hamnilton, and Jay who collec Rights was necessary to insulate the peo tively brought forth the Federalist Pa ple from government and to protect their In 1780, Mason obtained warrants for pers, logically and slcillfully explaining "inherent" rights. two tracts numbering 8,400 and 8,300 the proposed document with hermetic acres on Panther Creek. Because of a reason. In the end, Mason had won. The planter’s blunder in describing one of the tracts, a values were to be forever incorporated dispute arose with one George Wilson, Debate over the Constitution raged within the Bill of Rights to the Constitu the holder of a conflicting warrant. In throughout the states. Pros and cons were tion of the United States of America. By 1784, the parties sued each other in the fervently argued at every village and his death on Sunday, October 7, 1792, state court of Virginia. The suit dragged crossroad. The Virginia convention me- Mason had wanly approved the Consti on. After Mason’s death in 1792, the

JUNE 1992 IThe Advocate 27 _____

action was revived in the name of a the relationship of the grave’s occupant Padover, Saul K. Jefferson abndged. grandson, Richard Mason, and, upon di to one of the world’s greatest lawgivers. Mentor Books versity jurisdiction, was transferred to New York, New York 1970. the federal court in the newly-formed Today, Mason descendants abide in Commonwealth of Kentucky. Mason Daviess County, enjoying prosperity in a Potter, Hugh 0. A History of Owensboro and Daviess County prevailed in the United States District nation predicated upon the principles es Kentucky. Court, but Wilson carried the litigation to poused by their ancestral genius. Heiff Jones.Paragon Publishing the United States Supreme Court in a Montgomeiy, Alabama, 1974. matter styled Wilson v. Mason, etc. and Rutland Robert A. Mason, etc. v. Wilson [5 U.S. 451801.] Judge John I. Miller George ifason: Reluctant Statesman. The great Chief Justice John Marshall, a Court of Appeals of Kentucky Colonial Williamsburg, Inc. federalist appointee, delivered the opin 227 St. Ann Street Williamsburg, Virginia, 1961. ion of the Court deciding adversely to Masonic Building, Suite 302 The Constitution ofthe United States. Mason. Had George Mason lived, he Owensboro, Kentucky Commission on the Bicentennial of the United would doubtless have borne unbelievable 502 686-3235 States Constitution. insult. Not only U.S. Government Printing Office: 1989- 242- had he lost an important 798/80005. litigation at the hands of Marshall, but John D. Miller was born in Daviess the opposing counsel, Joseph Hamil County, Kentucky. He is a 1953 graduate HistoryofDaviess County, Kentucky. ton Daviess, later married the sister of of the College of Inter-State Publishing Co. Justice Marshall. Daviess County is Law. Aformer state representative, he has Chicago, 1883. named albeit misspelled for Joseph served on the Court ofAppeals since 1983. Hamilton Daveiss, pronounced "Davis." Wilson v. Mason, etc. and Mason, etc. p. Wilson, The error occurred when a clerk, inscrib 5 U.s. 45, 1 Cranch 45, 2 L. Ed. 29 1801. ing the law creating the county, inadver tently transposed the "e" and the "i" in BIBLIOGRAPHY Daveiss’s name, thus explaining the local custom of pronouncing Daviess County Brodie, Fawn M. Tho,nos Jefferson: An Intimate History. W. W. as "Davis." Norton Co., Inc. New York, New York, 1974. Presumably, Mason never visited his Kentucky holdings. His presence, how Bloom, Sot. The Story of the Cons:itution. ever, is patently evidenced by yellowing National Archives and Records paggs of legal documents reflecting his Administration struggle for "acquiring and possession Washington, D.C., 1986. property," a right he equated with the Mee, Charles L, Jr. "enjoyment of life and liberty." A tower The Genius ofthe People. ing limestonemonument in tiny St. Law Harper & Row Publishers rence Cemetery in eastern Daviess NewYork, New York, 1987. County marks the grave of Mason’s Padover, Saul K. grandson, George W. Mason, who died The Complete Jefferson. inthat county on June 11, 1855. North- Tudor Publishing side moss and the ashen gray of weather New York, New York. 1943. ing lime have all but obscured the Mason name. Only the curious trouble to know Essays on Mason

The Fairfax County History Commision has published a special collection of essays on one of our most important Founding Fathers: George Mason and the Legacy of Constitutional Liberty: An Examination of the Influence of George Mason on the American Bill of Rig$ts.1989J The essays inspire a greater laiowledge of George Mason and the United States Constiwtion.

This contribution has lasted over two hundred years and has been a great influence on other nations as well. The members of the Fairfax County History Commission hope that the work stimulates in ow school children aid our adults a greater awareness of our history and the importance of knowing it as a guide to our future. The essays are: The Early Years "George Mason and the Preparation for Leadership" by Diane D. Plkcunas. The Constitution Years "George Mason and the Constitution" by Josephine F. Pacheco. "George Mason’s ‘Objection’ and theBill of Rights" by Robert A. Rutland. "George Mason on the Tension Between Majority Rule and Minority Rights" by Robert P. Davidow. The Lasting Influence "George Mason- His Lasting influence" by Sandra Day O’Connor. "George Mason- Influence Beyond the United States" by Edward W. Chester. "George Mason- Why the Forgotten Founding Father" by Donald I. Senses. Copies of this work may be purchased from: The Map and Publications Center * Fairfax County, 4100 Chain Bridge Road. Fairfax, Virginia 22030,703246-2974. Additional information can be obtained by calling703237-4881.

JUNE1992 IT/re Advocate 28 GEORGE MASON and THE BILL OF RIGHTS

In May and June of 1776, George Mason ginia." When the Constitution was wrote Virginia’s Declaration ofRights, a signed on September 17, 1787, George statement of principles that became a Mason refused to sign it, despite his con model for other states, as they wrote their viction that the strong central govern own constitutions, and later inspired the ment it established was the only hope of federal Bill ofRights. survival for the newly independent United States. When the Confederation Congress called a meeting for May, 1787, Mason was In the Virginia ratifying convention of Albert Rosenthal / Gunston Hall chosen as one of Virginia’s delegates, June, 1788, Mason and Patrick Henxy led and he hastened to Philadelphia. those opposed to ratification, but for dif ferent reasons: Mason because of the lack During the four months of the Federal of a bill of rights; Henry to preserve the Convention, George Mason was very ac sovereignty of the states. On June 25, tive. His comments appear frequently in Virginia ratified the Constitution, then Madison’s notes of the proceedings. But appointed a 20-member committee - Mason had two concerns. First, he was from both sides - to draw up a list of unhappy that the new Constitution per- desired amendments. The list included a Vir mined the continuation of slavery - and, bill of rights taken from Mason’s second that the new Constitution con ginia Declaration of Rights of 1776 and 1725-1792 tamed no guarantee of individual rights. 20 other amendments.

On September 12, 1787, Mason spoke in After the Constitution was ratified, states ratified it, culminating with Vir favor of a bill ‘of rights and told the con Mason retired from public life and ginia on December 15, 1791. ventión one could "be prepared in a few refused to become a candidate for the hours." A motion to include a bill of Senate in the new Federal Congress. Poor Mason died on October 7, 1792 at kept Gunston Hall, secure in the knowledge rights failed, with ten states - including health and family considerations that the Constitution he helped draft now Virginia - voting no and Massachusetts him from straying far from his plantation, abstaining. Gunston Hall, located about 20 miles had a Bill ofRights. south of the present city of Washington, D.C. On the bank of the Potomac River. Gunston Hall, built in 1755 by Mason, is Mason was crushed. He told the conven except tion that as the Constitution then stood, From there, he watched as James open to the public every day he "could neither give it his support or Madison led the right for a Bill of Rights Thanksgiving, Christmas, and New vote in Virginia," and he "could not sign in the First Federal Congress and noted Year’s Day. Work continues to restore here what he could not support in Vir the progress of the Bill of Rights as the the home to its original appearance.

Charles Baptic /Gunslon Hall

JUNE 1992 /TheAdvocate 29 HAPTER 3

Constitution of‘The QlnitedTStates .f4meruIment X

?Xjghts reservetItostatesorpeople. ‘Thepowers not iletegateil to the QlaitedStates by the Constitution, norprohifluted by it to the States are reserved to the States repectively, or to thipeoplle.

Constitution of flcentucky Section 26

general powers subordinated to Pill ofRjgIlts; laws con trary thereto are void. Toguardagainst transgression oft/it hzqh powers which we have delegated, We Veclare that every thing in this fRill of fRqhts is exjcepted out of tile general powers ofgovernment, and shall forever remain inviolate; andall laws contrary thereto, or contrary to this Constitution, shall be void.

JUNE1992 ITS Advocate 30 USING KENTUCKY’S BILL OF RIGHTS IN CRIMINAL CASES

Frank Heft

Ina recent speech to the Criminal Justice cept of federalism by enabling the state appellate courts may eventually favor Section of the ABA, United States Solici courts to develop an independent body of one approach over another but until that tor General Kenneth W. Stan described law that is wounded in the state constitu thy arrives, defense attorneys should be the 1990-9 1 term of the United States tion. History, or perhaps our legal educa flexible and experiment with the analyti Supreme Court as "a fine term in many tion,has imbued us with a perception that cal methods available to us. respects for prosecutors." 49 CrL 1431 the federal courts are the primary source 8/21/91. In light of decisions such as ofprotection for the rights of citizens. We Under the Lockstep Method, the state Arizona v. Fulminante, U.S.111 S.Ct. should, by this time be fully disabused of court always interprets a similarly 1246, 113 L.Ed.2d 302 1991; Florida * that notion. As a result of that perception, worded provision of the state constitution v. Bostick, 501 U.S._, 111 S.Ct. 2382, the criminal defense bar may have been in the same manner that the United States 115 L.Ed.2d 389 1991; Mcweilv. Wis infected with a complacency which SupremeCourt interprets the federal con consin, 501 U.S. -‘ 111 S.Ct. 2204, caused us to be lax about pursuing issues stitutional counterpart. In essence, the 115 L.E*i2d 158 1991; McCleskey v. of state constitutional law since we be state cOurt becomes a clone of the United Zant,499 U.S...... , 111 S.Ct. 1454, 113 lieved that our clients would ultimately States Supreme Court. The Loclcstep LEd.2d 5171991; Coleman v. Thomp be vindicated in federal court. But those Method is probably the least attractive son, 501 U.S., 111 S.Ct. 2546, 115 days are gone and we can no longer af analytical tool because the concept of L.Ed.2d 640 1991 and Riverside ford to ignore the potential offered by federalism is better served by a state County v. McLaughlin, - U.S. -, Kentucky’s Constitution as a means to judiciary that demonstrates to the general 111 S.Ct. 1661, 114 L.Ed.2d 49 safeguard the rights of citizens. public and the bar its willingness to con 1991, Mr. Stan’s observation is a sider legal issues independent of United monumental understatement. In the past Defense attorneys can’t expect our state States Supreme Court precedent. few years, we have witnessed a steady courts to articulate the rights which exist decline in the rights that citizens enjoy under our Constitution unless we A state court which uses the Dual Reli under the United States Constitution. provide them with the opportunity of do ance Method will examine a constitu Although that trend is likely to continue ing so. The ground work for a state con tional issue under the State and Federal for the next few years, there is still a ray stitutional law argument must be laid in Constitutions and tie its decision to both of hope that the impact of the constitu the trial court. Consequently, written and documents. See e.g. State v. Badger, 450 tional issues decided in Washington will oral motions must be based not only on A.2d 336 Vt. 1982 in which the Ver be blunted by state appellate court deci the Federal Constitution but also on their mont Supreme Court analyzed the United sions which are firmly rooted in state Kentucky counterparts. Similarly, objec States and Vermont constitutions to de constitutional law. tions to rulings by the trial court termine the admissibility of certain evi should be grounded on the Kentucky dence in a murder case. The court ruled The States may, of course, interpret their Constitution as well as the United States that the defendant’s first confession was own constitutions in a manner which af Constitution wherever possible. For ex involuntary under the Vermont Constitu fords their citizens "individual liberties ample, in arguing that an illegal search tion and had tobe suppressed. His second more expansive than those confened by and seizure has occurred, defense confession also had to be suppressed un the Federal Constitution." Pruneyard counsel should cite not only the 4th der the Vermont Constitution. However, Shopping Center v. Robins,447U.S.74, Amendment but also Section 10 of the during the first confession, the police no 81, 100 S.Ct. 2035,2040,64 L.Ed.2d 741 Kentucky Constitution. If both constitu ticed blood stains on the defendant’s 1980; Cooper v. California, 386 U.S. tions are cited to the trial court, and the shoes and the court, relying on the United 58,62,87S.Ct.788,791, 17L.Ed1d730 case is eventually appealed, our appellate States and Vermont Constitutions, up 1967. Pruneyard Shopping Center and courts will have an opportunity to decide held the admissibility of the shoes. Cooper are the embodiment of true fed the issue as a matter of Kentucky consti eralism because they recognize the di! tutional law. Courts using the Supplemental Method ferent purposes underlying the federal of analysis will first consider whether a and state constitutions, The United States At the appellate level, there are four certain result is dictated by the United Constitution sets the floor on individual methods of analyzing state constitutional States Constitution. If so, the issue is rights while state constitutions, on the law issues. Since the development decided without consulting the state con other hand, prescribe the ceiling. The of Kentucky constitutional law is still in stitution. However, if the Federal ability of the state courts to interpret their the embryonic stages, it is difficult, with Constitution does not protect the right own constitutions vests them with incred one exception, to suggest that any involved or is unclear or unsettled, or the ible power to chart their own course with particular analytical method be adopted state constitution specifically encom out interference from the federal govern by our courts. For the time being, attor passes the asserted right or contains tex ment. The task for criminal defense attor neys should consider which methodol tual differences from the Federal Consti neys is to effectively implement the con- ogy works best in a particular case. Our tution, the state court will rely on the state

JUNE1992 ITheAdvocate 31 constitution to resolve the legal issue in tory;pre-existing state law; differences in sentence did not violate the 8th Amend question. the structure purposes between the fed ment. However, the sentence did violate eral and state constitutions; and matters the Washington Constitution which is An example of the Supplemental Method of particular state interests or local con identical to Section 17 of the Kentucky of analysis can be seen in State v. Gun- cern. Constitution in that it prohibits cruel pun will, 106 Wash.2d 54, 720 P.2d ishment. The Washington Constitution, 8081986 in which the Washington Su The foregoing criteria providean analyti like the Kentucky Constitution, says preme Court declined to follow Smith v. cal framework from which the state nothing about unusual punishment. Since Maryland, 442 U.s. 735, 99 S.Ct. 2577, courts can articulate a reasoned approach the language of the Washington Consti 61 L.Ed.2d 220 1979. In to deciding legal issues as a matter of tution was substantially different from Gunwall, the court held that the use of state constitutional law. They are espe the 8th amendment, the Washington Su pen registers violated the Washington cially important where a state court de preme Court was not bound to follow Constitution, The Washington Supreme clines to follow federal precedent be U.S. Supreme Court cases interpreting Court noted that Smithdid not safeguard cause they provide the state court with the 8th Amendment. the right to privacy, specifically deline an articulable basis for insulating its de med in the Washington Constitution.The cision from review by the United States State v. Neville, 346 N.2d 425 SD. court also noted that there were signifi Supreme Court. Thus, it’s worth examin 1984 offers another example of how the cant differences in the textual language ing several of those criteria. differences between the language of the of the 4th Amendment and the applicable United States Constitution and the state section of the Washington Constitution. With regard to the textual language of the constitution can affect the result ofacase. The Washington Supreme Court also state and federal constitutions, a state In Neville, the U.S. Supreme Court re based its decision on independentconsid constitution may provide an explicit right versed the South Dakota Supreme Court eration of the state interests involved and not recognized by the federal constitu and held that the 5th Amendment was not a review of decisions by the appellate tion. In such instances, it is a relatively violated by admitting evidenceof the de courts of other states. simple matter for a state to develop its fendant’s refusal to submit to a blood-al own body of constitutional law unim cohol test. On remand, the South Dakota Under the Primacy Method of analysis, peded by precedents established by the Supreme Court held that under the South the state court will first analyze a consti United States Supreme Court. But even Dakota Constitution, the defendant’s re tutional violation under state law. If if the federal and state constitutional pro fusal to submit to the blood-alcohol test the state constitution protects the liti visions are identical or substantially simi was evidence of a testimonial nature and gant’s rights, then analysisunder the Fed lar, the states are notrequired to automat was within the protection of the privilege eral Constitution is unnecessary. A state ically interpret their constitutions as the against self,incrimination. court will independently interpret the ap United States Supreme Court would in plicable provisions of its own constitu terpret the Federal Constitution. The The South Dakota Supreme Court in tion to comport with state history and freedom afforded the states in this regard Neville recognized a distinction between state law. However, if the state constitu is an integral part offederalism and mani the language of the 5th Amendment and tion does not protect the asserted fests a respect for their individual sover South Dakota’s constitutional counter right, then the court will analyze the issue eignty. See People v. BrLcendine, 119 part. The 5th Amendment provides that under the United States Constitution. Cal.Rptr. 315,531 P.2d 1099,1112-1113 no person shall be compelled to be a That analytical method was utilized in 1975. As the Minnesota Supreme Court witness against himself. The South Da State v. Cadman, 476 A.2d 1148 Me. recognized in State v. Hamm, 423 N.2d kota Constitution, like Section 11 of the 1974.The Maine Supreme Court 379, 382 Minn. 1988 a decision of the Kentucky Constitution, provides that no first considered whether the defendant’s United States Supreme Court which in person shall be compelled to give speedy trial claim was meritorious under terprets an identical provision of the fed evidence against flimself. The South Da the Maine Constitution. Finding no state eral constitution may be persuasive but kota court noted that other courts found constitutional law violation, the Court "it should not automatically be followed that the phrase "to give evidenceagainst then considered the issue under the Fed or a separate constitution will be of littie himself’ is intendedto mean something eral Constitution and also found no vio value ."Brisendine and Hamm are different and broader than the phrase "to lation. Cadman is importantfor its recog examples of where state courts declined be a witness against himself". Neville, nition that since decisions of to follow the precedent of the U.S. Su 346 N.W.2d at 428. Thus, Fain and the United States Supreme Court express preme Court precedent even though the Neville may be very useful in trying to minimum rights required by the Federal language of the state and federal consti persuade our state courts to speak with an Constitution, policy considerations and tutions were identical. independent voice on the interpretation particular state interests may require a of Sections 11 and l7of our Constitution state to depart from federal precedent Significant differences between the lan and pursue a path that is different from even where there are no textual or histori guage of the state and federal constitu that taken by the United States Supreme caldifferences between the federal and tions can also affect the result of a Court in interpreting the 5th and 8th state constitutional provisions. particular case. For example, in State v. Amendments. Another criteria that Fain, 94 Wash.2d 387, 617 P.2d 720 shouldbe considered is the strength of the In State v. Gunwall, supra, 720 P.2d at 1980 the defendant was givena manda analysisand the legal reasoning underly 812-813, the Washington Supreme Court tory life sentence as a habitual criminal. ing a decision of the United States Su identified six non-exclusive, neutral cri He had been convicted of three preme Court. For example, in Common teria which are relevant to determining felonies involving bad checks totalling wealth v. Upton, 394 Mass. 363, 476 whether a state constitution should be less than $470. As noted above, Wash N.E.2d 548 1985, the Massachusetts interpreted as granting broader rights ington uses the Supplemental Method of Supreme Judicial Court declined to fol than the United States Constitution. analysis and the court first considered the lowlllinoisv. Gates, 462 U.S. 213, 103 Those criteria include:textual language result required by the United States Con S.Ct. 2317, 76L.Ed.2d527l983. The of the state constitution; significant dif stitution. The Washington Supreme Massachusetts court considered the ferences in the texts of parallelprovisions Court, relying on Rummel v. Estelle, 445 Gates standard to be too vague to be of the federal and state constituticns;state U.s. 263, 100 S.Ct. 1133,63 L.Ed.2d382 conducive to consistent application. Con constitutional and common law his- 1980, concluded that the defendant’s sequently, the court found that the Gales

JUNE 1992 IThe Advocate 32 test did not comport with the probable v. Shelton, Ky., 766 S.W.2d 628 1989 FRANK HEFT cause standard required by the Massa the courts, on the facts of those cases, Chief Appellate Defender chusetts Constitution and retained the declined to apply the good faith excep Jefferson District Public Defender standard enunciated in Aguilar v. Texas, tion of United States v. Leon, supra. In 200 Civic Plaza 378 U.S. 108,84 S.Ct. 1509, 12 L.Ed.2d Benge v. Commonwealth, Ky., 321 719 West Jefferson Street 723 1964 and United States v. Spinelli, S.W.2d 247 1959 which involved a Louisville, Kentucky 40202 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d search incident to an arrest, the court 502 625-3800 637 1969 declined to follow Harris v. United for determining when an informant’s in States, 331 U.S. 145, 67 S.Ct. 1098, 91 formation was sufficient to establish L.Ed. 1399 1946 and United States v. probable cause for a search warrant. Up Rabinowitz, 339 U.S.56, 70 S.Ct. 430,94 ton is but one indication of the policy L.Ed. 653 1950. Although the former considerations and interests of a particu Court of Appeals noted that the language lar state that might be relevant in the of the 4th Amendment and Section 10 of determination of whether to follow the the Kentucky Constitution do not mate precedent established by the United rially differ, the Court found the dissent States Supreme Court. ing opinions in Harris andRabinowitz were a better reasoned analysis of the 4th Another issue considered to be a matter Amendment and the Kentucky court was of particular state concern is the death inclined to follow that rationale asa mat penalty. See e.g. State v. Gerald, 113 ter of Kentucky constitutional law under NJ. 40, 549 A.2d 792 1988 in which Section 10. Indeed, the Court in Benge, the NewJersey Supreme Court expressed 321 S.W.2d at 250, noted that "History, its opinion that the death penalty is a before and after the adoption of the matter of an individual state’s concern Fourth Amendment, upon which Section and therefore declined to follow Tison 10 of Kentucky’s Constitution is based, Chief Justice v. Arizona, 481 U.S. 137, 107 S.Ct, 1676, has shown good police intentions to be 95 L.Ed.2d 127 1987. inadequate safeguards for certain funda Robert F. Stephens mental rights of man." This recognition The development of state constitutional certainly militates against Kentucky’s law is becoming more pronounced as adoption of a good faith exception to the state courts indicate their willingness to warrant requirement. Thus, there is Sk[o document ever unit- rely on their own constitutions and, with precedent for Kentucky courts to reject greater frequency, decline to follow the decisions of the U.S. Supreme Court. ten fly man, save only the precedent established by the United States Supreme Court. A sample of state More recently, in Ingram v. Common- 5ThhjWiblTe, is more impor cases which reject U.S. Supreme Court wealth,Ky., 801 S.W.2d 321,3231990 twit to mankind’ anti its precedent include State v. Jackson, 102 the Kentucky Supreme Court, for pur Wash.2d 432, 688 P.2d 136 poses of double jeopardy analysis, indi eternal questforfreedom 1984 declining to follow Illinois v. cated its adherence to the doctrine that Gates, supra; State v. Dixon 307 Or. 195, "a single impulse or a single act consti than the BitI of 2?qhts. 766 P.2d 10151988 declining to follow tutes but one offense." The court noted 9t[o profession has ever Oliver v. United States, 466 U.S. 170, that "This view of Section 13 is obviously 104 S.Ct. 1735,80 L.Ed.2d 2141984; broader than the included offense ap hula heather responsibil State v. Noverabrino, 105 NJ. 95, 519 proach of Blockburger v. United States, the legal Aid 8201987 declining to follow good 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 ity than that of faith exception of United States v. Leon, 19321 and KRS 505 .020." profo,tadvo 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 1984; State v. Albrecht, 465 In Commonwealth v. Johnson, Ky., 777 tate and’ protect the N.W.24 107 Minn.App. 1991 decling S.W.2d 876,8801989, the Kentucky Su there to follow Leon; State v. Roland, 115 preme Court refused to blindly adhere to rights guaranteed Wash.2d 571,800 P.2d 11121990 de the United States Supreme Court’s 4th clining to follow Caljfornia v. Green Amendment precedent. "We are notwill wood,486 U.S.35, 108 S.Ct. 1625,100 ing ... to recognize exceptions [to the 4th L.Ed.2d 30 1988; Bryan v. State, Amendment] so broad as to render mean Del.Supr., 571 A.2d 170 1990 declin ingless the right secured by the Constitu ¶Evenj citizen-even those ing to follow Moran v.Burbine, 475 U.s. tion of Kentucky." Ingram and Johnson not specffralIy involveil 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 reflect the Kentucky Supreme Court’s 1986and Commonwealth v. Edmunds, willingness to base decisions solely on is the direct beneficiary of 586 A.2d 887 Pa. 1991 declining to the Kentucky Constitution. Criminal de ‘The follow Leon. These cases illustrate a fense attorneys must seize this initiative this great document. growing trend by the states to develop and aggressively urge our state courts to bell of freedom wou-&i state constitutional law and not blindly continue *in that direction. The United follow the lead of the United States Su States Supreme Court has embarked on a never ring without the preme Court. course that is steadily decreasing the pro tections offered to citizens by the Federal fRillofRights. Kentucky courts have also demonstrated Constitution, our response as criminal a willingness to rely ori our Constitution defense attorneys must be to ensure that to resolve legal issues. For example, in the individual rights and freedoms which Commonwealth v. Elliott, Ky.App., 714 the people cherish continue to be fully S.W.2d 494 1986 and Commonwealth protected by the Kentucky Constitution.

JUNE1992 /TheAdvocate 33 GEOGRAPHIC DISTRIBUTiON OF CASES REPORTED STATE CONSTITUTiONAL LAW CONSTITUTIONAL LAW BULLETIN IN 1987-1991 STATE

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N _t z t *> 0 ?t o p 2 STATE CONSTITUTIONS & THE CRIMINAL DEFENSE LAWYER: A Necessary Virtue

John H. Hingson Ill

I suggest to the bar that, although in the Those were exciting times to study con fmd out the telephone number called- past it might hw.’e been safeforcounsel to stitutional criminal law. The names of the without the need of a warrant. Smith v. raise only federal constitutional issues in cases I remember to this day: Miranda v. Maryland, 442 US. 735 1979. if a citi state courts, plainly it would be unwise Arizona, Gideon v.Wainwright, Esco zen uses a bank for financial transactions, these days not also to raise state constitu beck v. Illinois, Sandford v. Texas, Mapp federal agents may obtain those financial tional questions. v. Ohio, Massiah v. United States, The records from the bank without the need Warren Court had rewarded innovative for a warrant. States v. Miller, 425 U.S. William J. Brennan, Associate Justice, legal theories by accepting them and 435 1976. If a lawyer is told by the United States Supreme Court1 erecting a framework of American Con police they will not interrogate her client, stitutional law-a skeleton, if you will, the police are permitted to break their Any defense l.myer who fails to raise wi that Clarence Darrow would have been promise, and the confession thereby ob Oregon Constitution violation and relies proud to see constructed. The law had tained is admissible evidence. Morgan v. solely on parallelprovisions underthefed stepped forward and offered its helping Burbine, 475 U.S. 412 1986. If a poor eral constitution, except to exert federal hand to the weak and defenseless. Imag person is arrested for drunken driving limitations, should be guilty of malprac ine, if you can, the dreams ofan idealistic where the maximum punishment is 6 tice. law student about to step forward into a months in jail, the law may deny that legal system like that. Perhaps I would be person both a lawyer and a jury trial. RobertE. Jones,Associate Justice, Oregon able to take part in helping develop yet Banton v. City of North Las Vegas, Ne Supreme Court another earth-shaking precedent! And vada, 489 U.S.538 1989. NoJustice of then Richard Nixon was elected Presi the United States Supreme Court even The United States Supreme Court, aspres dent. And the Walls Came Tumbling bothers to ask the question in a dissenting ently constituted, has made it abundantly Down. opinion: "Is that a fair battle in the War clear that it is not interested in preserving On Drunk Driving?" And now, a retained the rights embodied in thefederal charter. AND THE WALLS CAME lawyer’s fees may be taken away, as part Consequently, it is up to the lawyers litigat TUMBLING DOWN of the price we are paying for this horrible ing cases in the state courts to become state "War On Drugs." United States v. Mon constitutional scholars and to press state’ The law has changed in America. The santo, 109 S.Ct. 2657 1989. Juveniles constitutional law claims. pillars of freedom erected by the Warren and mentally retarded defendants may be Court were not stout enough to withstand executed. John Henry Hingson, III, A Co3untiy Law the eroding effects of the storm created yer from Oregon City, Oregon by subsequent judicial appointments. Ifcompassion was ahallmark of the War Conservative and arch-conservative ren Court, cruelty seems to be a hallmark judges have put in place a climate that of the Rehnquist Court. The Rehnquis INTRODUCTION has, and will continue to have, relent tion is on. lessly eroding effects on those beautiful pillars of freedom. It seems as if the walls A LOOK FORWARD A LOOK BACKWARD of Jericho are about to come tumbling don There is a safe harborfrom the storm that I decided to go to law school in my last has been ravaging federal constitutional year of college. The life of Clarence Dar The doors of the federal court are shut to rights. State courts are permitted to reject row was the inspiration for my desire to state prisoners whose convictions were the miserly view of the United States become a defender of the downtrodden based on illegal search and seizure. Stone Supreme Court when it comes to consti and defenseless. His spirit was with me v. Powell, 428 U.S. 465 1976. The tutional rights. Criminal defense lawyers when, in 1968, I began the study of law "right of privacy" does not protect who practice in state courts must educate at the University of Texas. Americans from being spied upon by themselves about state constitutional liti government agents from the sky. Ca4for- gation if they are to provide adequate I took as many criminal law courses as nia v. Ciraolo, 476 U.S. 207 1986. If assistance of counsel to their clients. In were available. One of my favorites was an American lives in a houseboat parked deed, it has been suggested that the fail Constitutional Criminal Procedure. The on "navigable water,"federal police may ure to raise state constitutional law claims professor- an "adjunct"-was a bald- search the aquatic "castle" from bow to in state court amounts to legal malprac headed man who practiced law in Austin. stern without the need for a search war tice. State v. Jewett, 500 A.2d 233, 234 He taught to students the very law that he rant. United States v. Villamonte-Mar Vt. 1985. worked with every day. Frank Maloney quez, 462 U.S. 579 1983. If a citizen later became the President of NACDL. places a long distance call, government Unfortunately, there is no casebook pub agents may use electronic gadgetry to lished on state constitutional law. Few

JUNE 1992 IThe Advocate 35 law schools offer courses instate consti sion of your constitution will provide States Supreme Court as much as we do. tutional law. However, there are over 170 guidance for your arguments. If you feel That is why we have to work so hard to law review articles concerning hot you live in a state where your supreme give our state courts sound reasons for topic."4 court will react negatively to state consti rejecting federal constitutional decisions. tutional law arguments, pay particular Courts have looked at numerous criteria attention to old law review articles. in deciding whether to follow federal HOW TO "DO" STATE CONSTI Sometimes "conservative" judges are precedent,fwhich the following are two TUTIONAL LAW also traditionalists. examples: Now that you have a bit of a "feel" for Sate v. Gunwall, 720 P.2d 808 Wash. If you live in a state where a law school your own state constitution, let’s turn to 1986: teaches a course in state constitutional how to deal with a rcular problem. a. Textual language law, audit the course. If there are no such As our first example, we will look at a b. Differences in the texts way to approach arguing that there c. Constitutional history courses taught in your state, contact the law deans and suggest the curriculum be ex should be no "good faith"exception ala d. Ike-existing state panded to include such courses. If there United States v. Leon in your state’s e. Structural differences are no courses at the law schools avail constitutional search and seizure juris f. Matters of particular state or local able, what follows is a short course in prudence. As we work through this prob concerns self-education. First of all, read your lem, we will use a method of analysis that can be used each time we approach a state State v. Hunter, 450 A.2d 952, 965-67 state’s constitution. Then, with the Handler, J.. concurring: United States Constitution beside your constitutional law issue. NJ. 1982 state constitution, read it again. Compare a. Textual language the language between the two. The dif ANALYZE & ference in the language of the two docu HOW TO 1 Distinct provision ments may become significant. RESEARCH A STATE CONSTI 2 Phrasing of the provision TUTIONAL LAW ISSUE b. Legislative history Let’s digress for a little bit of history. c. Pre-existing state law before the d. Matters of particular state interest or State constitutions existed concern United States Constitution. The federal Read the State Cases State traditions Bill ofRights was based, in large part, on e. the cojstitutions of the colonies and the In the "good faith" example, rpad the f. Public attitudes states. The state constitutions were truly search and seizure provisions of the compare other state court de "first in time." state constitution; then look under West’s When you Key Number 18 under the heading Con cisions, determine if their reasoning can Many that were not colonies or digest for be of assistance to you in an attempt to states stitutional Law in your state make an argument that your state should states way back then like Oregon "bor state court interpretations of the state example, we will rowed" or copied the language from other constitution. do likewise. For our state constitutions for use in their own look at other state court decisions that have rejected United States v. Leon. constitutions. The "lending" state consti Determine the Source tution may itself have "borrowed" lan constitution, constitu The "good faith" exception. As we all guage from yet anotherstate As explained earlier, the state Leon, 468 U.S. and so on. The states did not borrow tional provision undoubtedly was not know, United States v. nghts. 897 1984, holds that theFourth Amend language from the United States Consti "copied" from the federal bill of ment exclusionary rule does not bar evi tu,tion. The "genealogy" of state constitu If the source of your state constitutional bor dence obtained by police officers acting tional provisions can be important in es search and seizure provision was inreasonable reliance on a search warrant tablishing "principled" reasons why a rowed from a state that has interpreted and detached magis state provision should compel a result that provision to contain no "good faith" issued by a neutral of fed quicken. trate butlater found to be invalid for lack different from an application the exception, your pulse should of probable cause. This case has dramati eral constitution. For instance, if a provi There are numerous books that can help in federal was constitu cally changed motion practice sion of the Oregon Constitution you find out where your ste court. "borrowed" from the Constitu tional provision originated. Some of the "borrowed" from very review explain tion, which itself was old law articles may Some state courts have decided not tc the Massachusetts Body of Liberties, and the debates that raged over the adoption follow as a matter of state consti the Massachusetts provision was judi of the search and seizure clause. News Leon tutional law. In People v. Bigelow, 48 cially interpreted in favor of a rights paper articles published at the time of re claimant, a persuasive argument may be constitutional conventions, you may find N.E.2d 451, N.Y. 1985, the court fused to admit evidence seized by policc made that the Oregon court should reject helpful materials in your state’s historical acting in good faith reliance on a searct the federal rule under a seemingly iden society. warrant later declared invalid for lack ol tical provisions. cause. New York’s highesi Compare Other States Constitutions probable of self-edu court based its rejection of on the grounc Let’s turn back to the process and Interpretive Case Law that a good faith exception encourages cation about your state constitution. Find stated: out if any law review articles have been Find out what other states hpe similar police lawlessness. As the court written constitution. clauses constitutions. about your state in their Ilif the People arepermitted Louse the seized Make a quick read of them. This ap evidence, the exclusionary nile’s purpose is proach may help you to get up to speed Be creative. It is up to you to attempt to completely frustrated, a premium is placed rapidly. Looking under West’s Key identify and explain criteria for detenmn on the illegal police action and a positive Number 18 under the heading Constitu ing when and why to invoke your state incentive is provided to otheis to engage in tional Law will reveal your state court constitution as an "independent and ade similar lawless acts in the friture. interpretations of its constitution. Of quate state ground." Few courts despite course, shepardizing a particular pros’i the and-liberty decisions of the United

JUNE 1992 IThe Advocate 36 New Jersey quickly followed its sister the law7 review articles criticizing Leon Constitutions of 1776 repeated Chapter state’s lead and similarly rejected the itself. 39 the Magna Carta virtually verba "good faith" exception in State v. Novem tim. brino, 519 A.2d 820 NJ. 1987. Justify ing its departure from the federal ruJe SUBSTANCE AND PROCE If you find language in your state consti based upon "the privacy rights of [itsJ DURE: STATE-BASED REME tution that derives from Chapter 39 ofthe citizens and the enforcement of [its] DIES AND THE "PLAN STATE MagnaCarta, or from the 1776 Delaware criminal laws," Id - at 850, New Jersey’s MENT" RULE Declaration of Rights, or from the Indi highest court criticized Leon the rule on ana Constitution of 1851, you may have several grounds. First, Leon encourages found the right legal ammunition for police officers to be less meticulous in making "principled" arguient for a Let us return to the language of the North a their search warrant applications. Sec Carolina Supreme Court in State v. Car state-based exclusionary rule. ond, a "good faith" exception reduces respect for and ter, supra, as an introduction to the next compliance with the prob two topics for discussion: 1 a state con The ‘Plain Statement" Requirement. able cause standard. Finally, a "good Let us now turn to a procedural require faith" exception stitutionally based exclusionary rule; and complied with, lest all dilutes the strength of 2 the "pln statement" rule ofMichigan ment that must be the constitutional protection against un your hard work go for naught. The United reasonable and unwa9nted v. Long. Of particular interest was Court does not take search and North Carolina’s looking to its own con States Supreme seizure. Id . at 853-54 stitution for a textual source for an exclu kindly to state courts disagreeing with its sionary rule undilutable by "good faith." rules. Consequently, it erected, in Michi In State v. Carter, 370 S.E.2d 553 NC. The gan v. Long, the "plain statement" rule, t988, North Carolina’s highest court court stated: which is a trap for the unwary criminal flatly rejected Leon and held that the ex Article I, section 18 of our state constitution defense lawyer and/or state court judge. clusionary rule is an indispensable partof directs our courts to provide every person the North Carolina Constitution. The with a remedy for injury. We will not aban It is not enough for a state court to merely court criticized the "cost/benefit" analy don a proven remedy in favor of one which, say that it is "relying on" its state consti sis employed by the United States Su because its ineffectualness is patent before tution in reaching its decision, for the preme Court in fashioning a "good faith" hand, mocks this constitutional guaranty. United States Supreme Court presumes exception as simply swallowing the ex Carter at 560. that a state court constitutional decision clusionary rule. Id . at 557. The court rests upon federal constitutional grounds embraced the "judicial integrity" ration This passage may be persuasive indeed unless the state court explicitly complies ale of the exclusionary rule, and rejected for crafting an argument against a "good with the "plain statement" requirement. the notion of a civil remedy against the faith" exception and in support of a state A state court must: police as unworkable. The court quoted constitutionally based exclusionary rule Sen. Sam Ervin in tracing the history of ala Mapp v. Ohio. Make clear by a plain statement in its judg the "right to be le alone" from Biblical ment or opinion that the federal cases are Many state constitutions have a remedy being used only forthe purpose of guidance, times 900 B.C.1 through the English the result that common law to the present. clause that may have the same origins as and do not themselves compel Article I, section 18 of the North Carolina the court has reached. Constitution, which provides: "All courts In a pair of cases, State v. Marsala, 579 If the state court decision indicates clearly Aid 58 Conn. 1990, and State v. Mor shall be open; every person for an injury and expressly that it’s alternatively based on rissey, 577 A.2d 1060 Conn. 1990, done him in his lands, goods, or reputa bona fide separate, adequate, and mdc Connecticut’s highest court similarly has tion shall have remedy by due course of pendent grounds, we, of coursewill not rejected the "cost/benefit" analysis em law; and right and justice shall be admin undertake to review the decision. ployed by the United States Supreme istered without favor, denial, or delay." It Court. The Connecticut court identified was upon this provision that the Carter Independent-but hardly adequate. the negative effects a good faith excep court concluded that exclusion of evi The United States Supreme Court meant tion has on the warrant issuing process; dence was required irrespective of "good what it said in Michigan v. Long. For Viz., 1 police"judge shopping" for "less faith." Now compare Article I, section example, in a case in which the Montana than exacting magistrates; 2 a message 10, of the Oregon Constitution, which Supreme Court had stated times its deci to magistrates that they "need not take provides: "No court shall be secret, but sion was based upon state constitution as great care in reviewing warrant applica justice shall be administered, openly and well as federal constitutional grounds, tions"; 3 the likelihood that overbur without purchase, completely and with the U.S. Supreme Court nevertheless va dened trial and appellate courts would out delay, and every man shall have rem cated the judgment instead of sending edy by due course of law for injury done back to the state court asking it take the time to write advisory opinions the case declaring warrant applications flawed him in his person, property, or reputa to certify the basis of its holding as in when it is just as easy to let the evidence tion." It is no accident that those provi Her!, v.Pitcairn, 324U.S. 1171945. in under a good faith exception. The sions seem so similar. They are based Montana v. Jackson, 460 U.S. 1029 court concluded that "a good faith excep upon the ancient common law maxim ubi 1983. This was truly unfortunate for tion gges not exist under Connecticut fits ibi remedium there is no wrong with Montana’s Mr. Jackson. His attorney had law." out a remedy. convinced the Montana Supreme Court that evidence of refusal to take a breath Various states have dealt with the issue State constitutional remedy clauses are test in a DWI case violated the Montana of a good faith exception in various clearlynot to e confused with "due proc self-incrimination clause. On remand, ways1 and some excellent law review ess" clauses Oregon borrowed its rem however, the constituency of the Mon articles have been written about the sub edy clause from the Indiana Constitution tana Supreme Court had changed, and ject of state courts’ rejection of Leon 16 of 1851. The 1776 DelawareDeclaration Jackson lost on state constitutional ofRights provision was the model for the grounds. If the Montana Supreme Court Finally, persuasive arguments about why Indiana clause. The clause from the Dela had initially complied with the "plain it is unworkable, illogical, and wrong as ware Declaration was modeled after statement" rule, the United States Su a matter of federal law can be found in Chapter 39 of none other than the Magna preme Court would never have had the Carta. Maryland’s and North Carolina’s

JUNE1992 /TheAdvocate 37 opportunity to snatch defeat from the has reached. Michigan v. Long, 463 U.S. 6NACDL Editor’s note: This article is the jaws of victory. 1032, 103 S.Ct. 3469, 3476, 77 L.Ed.2d beginning ofa regular bimonthly column 1201 1983; Jackson v. Housing Authority, on State Constitutional Rights. Don’t think that just because the "plain 321 NC. 584, 364 S.E.2d416 1988. 7The plural is used for a reason. Some statement" requirement was handed State p. Carter, 370 S.E.2d 553, 555 NC. down itt 1983 that your state supreme 1988. state constitutions not only have lan court is aware of the requirement, or that guage similar to the Fourth Amendment, itcomplies with the requirement. InKen- You should must request the court to but also have a separate provision creat wck’y v. Stincer, 482 U.S. 7301987, the adopt such language in its opinion. With ing a right of privacy. Court reversed without remanding for out a "plain statement," every state con further proceedings not inconsistent with stitutional defense victory is in jeopardy 8See B. Schwartz, The Bill Of the opinion a decision of the Kentucky of being undone in Washington, D.C. Rights:Documentary History 2 Vols. Supreme Court that had ruled in favor of 1971; W. Swindler, Sources AndDocu a criminal defendant on a confrontation ments Of US. Constitutions 11 Vols. issue. The Kentucky Supreme Court tie IN SUM 1977; The American Bench. Judges of cision had stated that it based its decision the Nation. Bills and Declarations of on the Kentucky Constitution, but the Rights Digest 1985-86 Forster Long 3d opinion ailed to contain the "plain state ed. 1986 this book is about the back This is not just the ranting and raving of in America. The back ment" required by Michigan v. Long. On some law professor-type of lawyer. At grounds of judges remand, the Kentucky Supreme Court last glance, over half of the state consti part of the book has a section on state ruled it was unable-due to the outhght tutional defense victories surveyed did constitutional law. reversal-to decide th%case under the not contain a "plain statement."Such vic Kentucky Constitution. The ilure of tories are too hard to come by to be lost 9For help in this task, see Constitutions state courts to comply with the "plain ofthe UnitedStates:National & State F. statement" rule continues, apparently un for failing to comply with e "technical Grad 2d ed. 1982 Oceana Publications, ity" of Michigan v. Long. And harken abated. In Penn.sylvania v. Muniz, 110 to the words of Justices Brennan and 6 vols.; Constitutions Of The United S.Ct. 2634 1990, the Court noted that supra, yourself liti States: National & State- Fundamen the court below, while citing Pennsyl Jones, lest you find tairLiberties & Rights, A 50-State index the gating/defending yourself in an ineffec vania Constitution, did not comply with tive assistance of counsel action or mal B. Sachs ed. 1980. the "plain statement" rule. Accordingly, claim. we now have a rule-that applies practice ‘°See also State v. Simpson, 622 P.2d throughout the nation-that a videotape 1199, 1217 Wash. 1980 Horowitz, J, of a booking and testing procedure of a dissenting; People v. Teresinski, 640 DWI arrestee is admissible as it 758 Cal. 1982; Comment, insofar JOHN HENRY HINGSON,III P.2d 753, shows slurred speech and incriminating Attorney at Law Developments In The Law: The Interpre comments made while trying to perform tation OfState Constitutional Rights, 95 sobriety tests and answering routine 222 Promenade Building Rev. 13261982. 421 Fligh Street Han. L. booking questions. The defendant had Oregon City, Oregon 97045 wor in the court below in Muniz. But "Id . at 458. NACDL members should because the Pennsylvania Superior Court take particular pride in the Bigelow deci failed to comply with the "plain state NACDL Second Vice President Hingson sion. The is a sole practitioner in Oregon City, NACDL Amicus Committee, ment" rule, the United States Supreme Oregon. Chair NACDL’s then chaired by Past President Ephraim Court was able to turn a defense victory of State Con Margolin, filed a brief in Bigelow. Writ into a governmental coup. stitutional Rights Committee, he is afre ten by Mark Mahoney, Vice-Chair of our quent lecturer at CLE seminars and current State Constitutional Rights Com Defense counsel’s briefing papers-in author of How ta Defend a Drunk Driv mittee, the 90-page brief contains a 10- the trial court as well as in the appellate ing Case,published Lo Clark Boardman, year study of search warrants in Buffalo courts-should contain"Plain State Co., now in its fourth edition. City Court showing the number of mis ment Boilerplate" as models for the taken searches to be 15%-25% of total. A court to employ in rendering its decision. FOOTNOTES copy of this brief is available from the Twoexcellent examples of state supreme NACDL BriefRank. courts complying with the "plain state ‘Brennan, State Constitutions and the Protections of individual Rights, 90 Hayden, ment" rule follow. 502 1977. ‘2NAOL member Joseph A. Han’. L. Rev. 498, Jr. filed an amicus brief on behalf of the Lest there be any doubt about it, when this Association of Criminal Defense Law court cites federal opinions in interpreting a 2State v. Lowty, 667 R2d 996 Or. 1983 yers ofNew Jersey. ACDL-NJ is now an provision of Oregon law, it does so because Jones, J., specially concurring. NACDL affiliate. it finds the views there expressed persua sive, not because it considers itself bound to 3J. Hingson, How to Defend a Drunk do so by its understanding of federal doc Driving Case 4-3 4th ed. 1989.. ‘3See Micah 4:4. trines. member William 4Citations to these 170 articles are col 14Connecticut NACDL State v. Kennedy, 295 Or. 260,267,666 P.2d lected, together with over two hundred F. Dow HI authored a marvelous brief on 1316 1983. behalf of the defendant in Morrissey. The state constitutional case citations, in J. brief is available through the NACDL Because we decide this caseon adequate and Hingson, supra, at 4-3. I apologize for Briefflank, independent stale constitutional grounds, we citing my own book, but it is the only do not reach or decide the question of show in town. whether the challenged search violated de ‘5See People v. Sundling, 395 N.W.2d fendant’s fourth and fowteenth amendment 308 Mich. App. 1986 rejecting Leon; kande, Things First: Rediscovering v. State, 722 S.W.2d 209 ‘rex. rights under the Federal Constitution. The State’s Bills OfRights, 9 U. Bali. L. Rev. Dees federal cases cited or discussed are being Crim. App. 1986 rejecting on statutory used only for the purpose of guidance and 379,3811980. grounds; Lighter v. State, 743 S.W.2d they do not compel the result that this Court

JUNE1992 fTheAdvocate 38 568 Tex. Crim. App. 1987 statute ‘7See, e.g., LaFave, "The Seductive Call of the Exclusionary Rule and the Devel amended in light of Leon ; Common of Expedience": United States v. Leon, opment of State Constitutional Law, wealth v. Upton, 476 N.E.2d 548 Mass. Its Rationale ant/Ramifications, 1984 U. 1987 Wis, L. Rev. 377 1987; Note, 1985 rejecting Leon on statutory HI. L. Rev. 895. Criminal Law! Constitutional Law-The grounds; State v. Vanhaele, 649 P.2d Exclusionary Rule Dilemma in Florida 1311,1315, 1313Mont. 1982rejecting ‘8The Carter court complied with the Bernie v. State, 524 So2d 988 Ha. good faith exception and adopting judi "plain statement" rule of Michigan v. 1988, 17 Ma. St. flL. Rev. 177 1989, cial integrity rationale; People v. Long, 463 U.S. 1032 1983, with classic Grawien, 367 N.W.2d 816 precision. Wis.1985;Stringer v. State, 491 So.2d Mfthigatt v. Long, 103 S.Ct. 3469, 837 Miss. 1986 Robertson, J., concur ‘9See A.E. Howard, TheRoadFromRun 34761983. ring; Commonwealth v. Melilli, 555 nymede 1968; Linde, Without "Due A.2d 1254 Pa, 1989 state constitution Process," 49 Or. L. Rev. 125 1970; See also Colorado v. Bertine, 479 U.S. requires warrant for installation of pen Linde, E.Pluribus-Constitutional The 367 1987. register, rejecting Smith v. Maryland ory ant/State Courts, 18 CIa. L. Rev. 165 whether state constitution contains a 1984; Comment, State Constitutions’ ‘ See Comment, The Use of State Con "good faith" exceptionleft open. Remedy Guarantee Provisions Provide stitutional Provisions in Criminal De More Than "Lip Service" to Rendering fense After Michigan v. Long, 65 Neb. L. ‘6See Note, The Good Faith Exception to Justice, 16 U. 101. L. Rev. 585 1985. Rev. 605 1986; Note, Ohio v. Johnson: theExclusionary Rule: The Latest Exam The Continuing Demise of the Adequate pie q" "New Federalism" fri the States, 20Linde, supra note 19, 49 Or. L. Rev, at ant/independent State Ground Rule, 57 71 Marq. L. Rev. 166 1987Note 137-38. U. Cob. L. Rev. 395 1986. Criminal Law-Exclusionary Rule- North Carolina Constitution Does Not 21For further assistance in researching "Reprinted by permission of the The Na Contain A Good Faith Exception, 102 this issue, see State v. Davis, 666 P.2d tional Association of Criminal Defense Harv. L. Rev, 7241989; Note, Criminal 802 Or. 1983; State v. Brown, 543 A.2d Lawyers, The Champion, December Procedure-Search and Seizure-New 750 Conn. App. 1988; Commonwealth 1990 and the author." Jersey Supreme Court Rejects a Good- v, Ford, 476 NL2d 560 Mass. 1985; Faith Exception to the Exclusionary Note, The Newly Discovered Exclusion Rule, 19 Rutgers, Li. 197 1987. ary Rule ofArticle 14 of the Massachu setts State Constitution, 20 Suffolk UI.. Rev. 617 1986; Comment, The Future

PLAIN STATEMENT BOILERPLATE

In the Defendant’s Motion To Suppress, reliance is placed upon Oregon statutes and the Oregon Constitution as well as the United States Constitution, in thatorder. This is the "proper sequence" in which to analyze legal issues in Oregon. Sterling p. Cupp, 290 Or. 611,614,625 P.2d 123 1981; Carson, "Last Things Last": A Methodological Approach To Legal Argument in State Courts, 19 Willameue L.J. 641, 643-645 1983. The temptation to treatthis Motion To Suppress as "just anotherMiranda" issue will be almost overwhelming. But, that temptation must be resisted, because itis this Court’s duty to consider and resolve our Oregon law claims prior to any analysis of constitutional questions such as the application of Miranda arising under the Fourteenth Amendment of the federal constitution. The mie has been expressed that all questions of state law be considered and disposed of before reaching a claim that this state’s law falls short of a standard imposed by the federal constitution on all states. State v. Kennedy, 295 Or. 260,262, 666 P.2d 1316 1983.

It is not enough that this court consider and resolve all state law issues before reaching federal constitutional questions. In deciding state law issues, care must be taken that this court make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not thanselves compel the result that the court has reached.

If the state court decision indicates clearly and expressly that it is alternatively based on bona Jide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision. Michigan p. Long, 463 U.S. 1032, 103 S.Ct 3469, 3476,77 L.Fd.2d 1201 1983. See also, Collins, Pkthz Statements: The Supreme Courts New Requirement, 70 A.B.A.J. 92-94 1984.

When defense counsel cites federal opinions in analyzing a provision of Oregon law in this case, we do so because we find the views expressed persuasive, not because we claim the federal opinions bind this court on purely state law issues. Likewise, when this court announces its decision, it should make it clear that when this court cites federal opinions in interpreting a provision of Oregon law, it does so because it finds the views expressed persuasive, not because it considers itself bound to do so by its understanding of federal doctrines. State p. Kennedy, 295 Or. 260,267,666 P.2d 1316 1983. The failure of the court to make a "plain statement" that its decision is based solely on state law and that federal opinions cited in that discussion are cited only for purposes of guidance can cost the defendant and the state thousands of dollars in appellate exnses,as well as "delay justice." The appellate histoiy of State p. Kennedy, 49 Or. App. 415, 619 P.2d 948 1980, Oregon p. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 1982, State p. Kennedy, 61 Or. App. 469, 657 P.2d 717 1983, and State p. Kennedy, 295 Or. 260, 666 P.2d 1316 1983, is but one example of the mischief caused by a court’s failure to make a "plain statement"

The failure of a court to make it plain that federal opinions cited in its discussion of state law are cited only for purposes of guidance is exemplified in the case of Montana p. Jackson, 459 U.S. 1029, 103 S.Ct. 1418, 75 L.Ed.2d 471 1983. In that case the Montana Supreme Court said seven times that its decision was based on Montana Law, but made the mistake of citing a Montana opinion that construed the Fifth Amendment. That was sufficient fur the Supreme Court to vacate the Montana judgment holding evidence of breath test refusal violative of a Montanan’s right to be free from self-incrimmation In light of that court’s purely federal decision that such evidence was not violative of the federal right. See South Dakota p. Neville, 459 U.S. 553, 103 5.0, 916,74 L.Ed.2d 748 1983.

JUNE 1992 The Advocate 39 SECTION 10: USE IT OR LOSE IT!

vtiQ My attention has once again been drawn Does Section 10 differ in any way from SECTION tO’S DIFFERENCES: to Section 10 of the Kentucky Constitu the 4th Amendment? Is there any sub POSSESSIONS, NOT EFFECTS tion. stance in our stateconstitution that can be used to protect the rights of our clients? Yet, there are obvious differences, Judge John D. Miller of the Court of mostly in syntax. The only significant Appealjof Kentucky stated at the 1990 SECTION 10 difference is the substitution of "posses KACDL seminar that defense attorneys COMES FROM THE 4TH sions" for "effects." needto rely increasingly upon their state constitutions rather than the federal con The 4th Amendment to the United States Justice Bern D. Sampson of the Court of stitution indefending their clients. Justice Constitution states: Appealswrote in the KentucicyLawJour Hans Linde of the OregonSupreme Court nal Vol. XIII, May, 1925 that the word recently was quoted in the May 27, 1988 The right of the people to be secure in "effects" is "property or worldly sub Congressional Quarterly’s EditorialRe their persons, houses, papers, and ef stance, devoting property in a more a search Reports as saying that a defense fects, against unreasonable searches tensive sense than goods; embraces lawyer "is skating on the edge of mal and seizures, shall not be violated, and every kind of property, real and per practice when he doesn’t rely upon his no warrants shall issue, but upon prob sonal, including things in action; while own state constitution." Id. p. 282. able cause, supported by oath or af the word ‘possession’ not only relates to firmation, and particularly describing theproperty owned but such things, both Justice William Brennan called upon de the place to be searched, and the per real and personal, as are under the do fense attorneys to lookat their state con sons or things to be seized. minion and control ofthe owner orpos stitutions rather than always citing the sessor. In considering and construing the federal constitution. See generally Bren One year after the 4th Amendment was word ‘possessions,’ as employed in our nan, State Constitutions and the Protec adopted in 1791, Kentucky wrote in Sec constitutional provision, we have given tion of Individual Rights, 90 Harvard tion 9 of article 12 of the Kentucky Con it a broader and more general meaning Law Review 489 1977. stitution of 1792: than the word ‘effects’ is generally al lowed." Id. p. 253. In the Congressional Quarterly article, it The people shall be secure in their per was noted that the 500 rulings since 1970 sons, houses, papers, and possessions Counsel for a defendant should utilize utilizing the state constitutions have from unreasonable seizures and this difference to counter any argument made prosecutors and state judges un searches; and that no warrant to search that a defendant has no standing in some comfortable. "In a 1986 survey of state any place or to seizeany person or thing thing that he or she possesses. Supreme Court judges, a member of the shall issue without describing them as Georgia Supreme Court candidly con nearly as may be, nor without probable How about garbage, a student’slocker, or fessed that he and his colleagues did not cause supported by oath or affirmation. our backyards? Does Section 10’s "pos favor the use of the state:constitution in session" clause provide enough of a dif deciding criminal matters simply because Section 10 of the Kentucky Constitution ference to reach a different result from the document offered more protection to of 1891 was taken directly from this pro that reached by the United States Su defendants than does the United States vision of Kentucky’s older Constitution. preme Court under the 4thAmendment? Constitution." Understandably, prosecu It now reads: tors "are not very enthusiastic about the KENTUCKY CASELAW trend instate constitutional law." The people shall be secure in their per sons, houses, papers and possessions, Beyond the syntax, caselaw offers a Finally, I open up the December 1990 from unreasonable search and seizure; wealth of material for discovering the issue of NACDL’S The Champion, and I and no warrant shall issue to searchany content of Section 10. Unfortunately, find a wonderful article entitled State place, or seize any person or thing, during the century following its writing, Constitutions and the Criminal Defense without describing them as nearly as Section 10 was seldom used. According Lawyer by John Henry Hingson III, may be, nor without probable cause to Justice Sampson, there were only three which should be mandatory reading for supported by oath or affirmation. such cases. His conclusion as a result: allof us. fEd.Note: InThislssuej "Kentuckians were not, therefore, greatly Thus, historically Kentucky’s search and annoyed or harassed by these unusual With this kind of support, and not one to seizure provision was born in the nation’s processes called ‘Search Warrants’ dur want to "skate on the edge of malprac Bill of Rights. Our forefathers’ desire to ing the formative and the greater part of tice," I have begun to question what Sec be free from oppressive governmental the progressive period of the Common tion 10 of the Kentucky Constitution is searches and seizures lives on in Ken wealth.’Vd. at 251.Jfthat’s the mason for all about. Is it enough for us to begin to tucky’s present Constitution. the paucity of cases, Kentuckians must cite Section 10 along with the 4th have been mightily harassed in the cen Amendment in our suppression motions? tury that followed.

JUNE 1992 ii:he Advocate 40 YOUMAN excuse or justification for an unlawful a great Constitutional mandate should search or seizure." Id. be nullified. Id. at 866. Any exploration ofSection 10 mustbegin with You,nan v.Commonwealth, 189 Ky. It has become fashionable recently to So much for the good faith exception in 152, 224 S.W. 864 1920. You,nan denigrate and minimize the exclusionary Kentucky! penned by Justice Carroll, is well and rule, to say that even though a search is passionately written. An obvious reac illegal, that evidence so seized should FLEMING: HOUSE tion to prohibition, its language soars. still be admissible against the accused. The facts were simple enough. Officers After all, can our society bear to exclude There are several other cases in the went to arrest a man with an arrest war evidenceagainst a criminal merely due to 1920’s that similarly make that periodthe rant, but nota search warrant. When they some judicially created nicety known as golden years of Section 10. Fleming v. found him absent, they searched his the exclusionary rule? Youman fore Commonwealth, 217 Ky. 169, 289 S.W. house, and found prohibited whiskey. closes such denigration of the exclusion 212 1926 interpreted "house" to in The Court first noted the problem that ary rule under Section 10. The Court clude a still located in a house located had developed in Kentucky: asked: some 300 yards from the defendant’s dwelling house. [lit is not an uncommon thing in this Will a high court of the state say in state, for officers of the law, urged in effect to one of its officers that the MULLINS: POSSESSIONS some cases by popular clamor, in others Constitution of the state prohibits a by advice of persons in a position to search of all person without a search "Possessions" included the woodlands exert influence, and in yet others by an warrant, but if you obtain evidence 30 yards from the defendant’s residence exaggerated notion of their power and against the accused by so doing you in Muffins v. Commonwealth, 220 Ky. the pride of exploiting it, to disregard may go to his premises, break open the 656, 295 S.W. 9871927. the law upon the assumption that the doors of his house, and search it in his end sought to be accomplished willjus absence, or over his protest, if present, MORSE: HOUSE tify the means, and therefore no atten and this court will permit the evidence tion need be given to constitutional so secured to go to thejury to secure his Morse v. Commonwealth, 204 Ky. 672, authority, when public approval will conviction? 265 S.W. 37 1924 extended "house" to commend the unlawful conduct. a dugout again with a still in it. Section Id. at 861. It seems to us that a practice like this 10 "means to include more than a mere would do infinitely more harm than dwelling house when it uses the word Sound familiar? The Court next ad good in the administration of justice; ‘houses’ . . . We know from common dressed the question of whether the that it would surely create in the minds experience and ordinary observation that search was "reasonable,"and thus legal, of the people the belief that courts had men often have protected and sheltered despite there being no warrant. The no respect for the Constitution or laws many of their valuable possessions in reader will recall that our nation’s high We cannot give our approval to a houses other than theirdwelling houses." Court is toying withusing the reasonable- practice like this. Id. at 38. * ness clause irrespective of the existence Id. at 866. of a warrant. Section 10, however, fore CHILDERS: GARDEN & POND closes such a consideration in Kentucky. Youman xxts to rest the notion that the "[lit might be thought that a reasonable exclusionary rule in Kentucky is judi Cal4fornia v. Carney, 471 U.S. 386, 105 search and seizure; or one that was not cially created, and arnIemerely intended S.Ct. 2066, 85 L.Ed.2d 406 1985 be unreasonable, would be allowed without to deter the police. Section 10’s exclu ware! Both "houses" and "possessions" a search warrant. But there is no founda sionary rule is part of the veryfiber of our apply to areas surrounding one’s dwell tion for this construction. The section Constitution. ing. "It would be practically if not utterly does not permit any kind or character of impossible to enjoy the full and free use search of houses, papers, or possession Youman does not apologize for theexclu of the ‘houses’ and ‘possessions’ without without a search warrant." Id. p. 863. sion ofevidence, even where the result is the garden and pond in such close prox that a guilty person might go free. This imity." Childers v. Commonwealth, 198 Youman says any warrantless search is Court understood that the constitutional Ky. 848, 250 S.W. 1061923. per se unreasonable under Section 10. It right to privacy is much more important was "inserted to meet a practice that had than the transient needs of law enforce BRENT: OPEN FIELDS grown up in Revolutionary times, and to ment in one case. Every defense lawyer protect citizens, not only against this in Kentucky should use the following Section 10 was not without its limit. In practice, but against all searches and sei language somewhere in 1991: Brent v. Commonwealth, 194 Ky. 504, zures of their property withouta warrant" 240 S.W. 45 1922 one will fmd the Id. It is much betterthat a guilty individual genesis of the open fields concept. should escape punishment than that a There, the Court held that "possessions" Youman also expresses little sympathy court of justice should put aside a vital, has its limits in the context of the open with those who would trade security for fundamental principle of the law in or field. Section 10’s primary purpose is to better law enforcement, a most "modern" der to secure his conviction. In the ex protect a person’s home. "[E]very man’s sentiment expressed often by today’s ju ercise of their greatpowers, courtshave house is his castle and is inviolable ...the diciary. "[T}his absolute security against no higher duty to perform than those framers of those Constitutions had inher unlawful search or seizure exists,without involving the protection of the citizen ited no practice or tradition that impelled reference to the guilt or innocence of the in the civil rights guaranteed him by the them to safeguard vast tracts of land, person whose property or premises are Constitution. and if at any time the but,"profiting by the experience of their searched. The mere fact that he is guilty, protection of these rights should delay, forefathers, they were desirous of pre or that there may be reasonable grounds or even defeat, the ends of justice in a serving inviolate the person of everyciti to believe that he is guilty, of the charge particular case, it is better for the public zen and those possessions intimately as-S preferred against him, or the offense of good that this should happen than that sociated with his person, his house, his which he is suspected, will afford no papers, and his effects." Id. at 49.

JUNE 1992 /TheAdvocate4l ASH: SUITCASE that section as part of our Constitution." language from the Fourth Amendment to Id. at418. the Constitution of the United States," No discussion of the golden age of Sec that did not end the matter. Section 10 tion 10 would be complete withoutAsh MANSBACK SCRAP: ADMINIS "did not mean to substitute the good in v. Commonwealth, 193 Ky. 452, 236 TRATIVE SEARCH tentions of the police forjudicial authori S.W. 1032 1922. There, the Court held zation except in narrowly confmed situ the search of a suitcase withouta warrant The beginning of the "administrative ations. History, both before and after the was illegal. The Court reiterated the im search" can be found in Mans/jack Scrap adoption of theFourth Amendment,upon portance of the judiciary’s protection of Iron Company v. City of Ashland, 235 which Section 10 of the Kentucky Con our privacy rights. Ky. 265, 30 S.W.2d 968 1930. There, stitution is based, has shown good police the Court held that Section 10 did not intentions to be inadequate safeguards for It is doubtful if our boasted constitu make illegal an ordinance requiring a certainfundamental rights of man."Id. at tional form of government boasts any junk dealer to consent to inspection and 250. greater single protection or bulwark to search of his junkyard as a prerequisite to American liberty than the one against obtaining a license. How can Leon possibly gain a foothold unreasonable search and seizure. with language such as this? [The stopping of the Germans at Vet- CHAPLIN: AUTOMOBILE dun by the French] was no more essen EXCEPTION LANE: MINOR VIOLATION tial to the preservation of the liberties SEARCH of France, in our humble opinion, than The Court used Section 10 to reject the is the prevention of the encroachment automobile exception to the warrant re A very interesting case during this period upon-the constitutional provision under quirement established in Carroll v. is Lane v. Commonwealth, Ky., 386 consideration essential to the continued United States, 267 U.S. 132, 45 5.0. S.W.2d 743 1965. There, a person was perpetuity of our constitutional liberty. 280,69 L.Ed.2d 543. arrested for a minor violation and placed Id. at 1036. in another car. The police then searched In Commonwealth v. Chaplin, 307 Ky. his car, which the Court held to be illegal MCMAHAN’S A.DM’X: 630, 211 S.W.2d 841 1948, the Court due to being conducted without a war GOOD FAITH held that searching a car requires a war rant. One wonders whether New York v. rant, or a legal arrest. "The protection Belton, 453 U.S.454, 101 S.Ct. 2860, 69 The period which followed, loosely afforded by Section 10 of our Constitu L.Gd.2d 768 1981 is the law in Ken 1930-1970,saw the continueduse of Sec tion consists in requiring that probable tucky, given this interpretationof Section tion 10, even if enforcement was uneven, cause for searching any place or seizing 10. and the language used less soaring. Mc any person or thing shall be determined Ma/ian’s Athn’x v. Draffen, 242 Ky. 785, by a neutral judicial officer instead of by MITCHELL: ROADBLOCKS 47 S.W,2d 716 1932, is the most nota the often over-zealous police or enforce ble, and was not surprisingly written ment officer."Id. at 845. While it can be said that historically Sec early in the period. McMahan’s Adm’x tion 10 has been interpreted to require a not only establishes how a search warrant In Afred v. Commonwealth,, Ky. 272 warrant in most situations, that did not is to be executed, it also conclusively S.W.2d 44 1954, the Court held a prevent the Court from approving road rejects the good faith exception. search to be illegal where the police blocks to look at drivers’ licenses in walked onto the defendant’s property to Commonwealth v. Mitchell, Ky., 355 In executing a valid search warrant, the look into his truck, which contained S.W.2d 686 1962. This foreshadowed officer must not only be considerate of whiskey. Michigan Dept. of State Police et.al. v. the comfort and convenience and feel Sitz, 496 U.S. -‘ 110 S.Ct. 2481, 110 ings of the person of the occupants of YOUNG: EXCLUSIONARY RULE L.Ed.2d 412 1990 by 28 years. the premises at the time of the search, but must not exceed or abuse his Young v. Commonwealth, 313 S.W2d SECTION 10 FROM 1970 - 1990 authority with which he is clothed and 581 1958, while holding against the under which he is acting. He may not defendant, reemphasized the view of the It was during the last 20 years, 1970- unnecessarily injure the feelings of the exclusionary rule established in Youman. 1990, that Section 10 has fallen into woe defendants or wmecessarily mar the The rule was created "to give actual ef ful disuse. Reading the cases during this premises searched. Id. at 718. fect to the purpose of Section Ten of the period demonstrates that lawyers and Kentucky Constitution. Without such judges alike have either forgotten or ig The good faith of the officer, or that he rule of evidence the constitutional guar nored Section 10. Gone is the separate was acting in full belief, and with reason anty against unreasonable search and sei interpretation of Section 10. Often, Sec to believe that the evidence of the crime zure would be sadly lacking in verity." tion 10 isnoteven mentioned. Sadly lack sought or desired was present on the ing is the special dedication to the rights -premlserseatched,wilvtiot justify a BENGE: GOOD INTENTIONS of privacy so hallowed by the Court of search without a warrant, or with a void Appeals during the earlier periods. search warrant. Benge v. Commonwealth, Ky., 321 S.W.2d 247 1959, was the highwater The low point is Beemer v. Common MILLER: ENTRY BY RUSE mark of this period. There, the officers wealth, Ky. 665 S.W.2d 912 1984. serving a bench warrant were held to There, the Court states enthusiastically The Court condórnned the use of a ruse have made an illegal search when they that "[w]e are fully in accord with the to gain entry to a defendant’s home in searched her apartment. Although two relaxation of the Federal requirements as Miller v. Commonwealth, 235 Ky. 825, U.S. Supreme Court cases would have expressed in Illinois v. Gates Id. at 32 S.W.2d 416 1930. Section 10, "the approved the search, the Court held that 915. There is virtually no discussion of chief corner stone upon which the liber Section 10 did not. Section 10 as the Court adopts the prob ties of the citizens . . . [are guaranteed] able cause definition of Illinois v. Gates, preserves and guarantees the privacy of While "Section 10 of the Constitution of 462 U.S.213, 103 S.Ct. 2317, 76L.Ed.2d the home. . . It is our first duty to uphold Kentucky does not materially differ in its 527 1983.

JUNE 1992 IT/it Advocate 42 Estep v. Commonwealth, Ky., 663 TODAY’SPOSSIBILITIES & CONCLUSION S.W.2d 313 1984 is similar. There the PROMISE Court adopts United States v. Ross, 456 This is my survey of Section 10 of the U.S. 798, 102 S.Ct. 2157, 72L.Ed.2d 572 There is even more hope today. The pre Kentucky Constitution. It is by no means 1982, thereby overruling Common sent Kentucky appellate courts in recent complete. There is slot to use in trying to wealth v. Chaplin, supra, discussed ear cases at least hint that they are willing to protect the privacy rights of our clients. lier. Yet, while Chaplin seemed to rely on lookat Section 10 separately from the 4th Section 10, the Estep Court seemed to Amendment. As we have seen, Section 10 does not make onlya 4th Amendment analysis. In abide a good faith exception to the war overruling Wagner v. Convnonwealzh, In Faa/v. Commonwealth, Ky. App.765 rant requirement. Ky., 581 S.W.2d 352 1979, and City of S.W.2d 241989, the Court of Appeals Danville v. Dawson, Ky., 528 S.W.2d cited Section 10 with the 4th Amendment It appears to emphasize more the warrant 687 1975 the Court merely stated that inholding that a passenger ina car could requirement, and deemphasizes the "rea theft holding was "inharmony with See not be an-es ted where contraband is found sonableness" clause that is now being flon Ten of the Kentucky Constitution -. in the car. used so often to justify warrantless ."Id. at 215. How so? searches and seizures under the 4th More promising than Paulis the Court’s Amendment. Most of the decisions in the modem pe finding a search warrant illegal where riod have merely made a 4th Amendment issued by a trial commissioner in a county Section 10 may provide broader standing analysis. One wonders how often defense other than his own. Commonwealth v. to challenge searches and seizures of counsel made only a 4th Amendment Shelton, Ky., 766 S.W.2d 628 1989. one’s "possessions" than is available un argument, thereby allowing the Court to The importance of this case is not that der the 4th Amendment. confine itself to the increasingly conser Section 10 is used because it is not. vative law coming from the federal Rather, the court declined to usethe good Section 10 appears to provide more pro bench? faith exception of United Stales v. Leon, tection to outhuildings and other areas 468 U.S. 897, 1045.0.3405, 82 L.Ed.2d surrounding one’s dwelling house. That is not to say that the Court has 677 1984. It make sense for the Court ignored Section 10 altogether in recent to so decline. Section 10 may not allow a search of a times. car incident to a lawful arrest that is al As has been seen, Kentucky’s exclusion lowed by New York v. Belton. Justice Osborne, in a dissenting opinion ary rule has been around as long as the in Craig v. Com. Dept. ofPublic Safety, exclusionary nile under the 4th Amend In short, Section 10 has a rich history. Ky., 471 S.W.2d 11 1971, stated that in ment. The 4th Amendment’s exclusion Section 10 establishes more protection his opinion, Section 10 prohibited taking ary rule is now said to be based solely than does the 4th Amendment. Because someone’s bloodfrornhim orher without upon deterrence of police misconduct. of that, we must use it. If we don’t, we’ll their consent. Thus, it makes at least intellectual sense lose it and have no one to blame but not to utilize the exclusionary rule where ourselves. In Rook,er v. Commonwealth, Ky., SOS the officer is relying in good faith on the S.W.2d 5701974, the Court used Sec magistrate’s issuance of a warrant. ERNIE LEWIS tion 10 side by side with the 4th Amend Assistant Public Advocate ment to hold invalid a warrant signed by On the other hand, Section 10’s exclu Director, DPA a judge who had not read the affidavit. sionary rule established in Yownan and ClarkflacksolvMadison County Office Justice Lukowsky, again in dissent, Ash, has a much broader rationale. Essen Richmond, Kentucky 40475 urged his colleagues to be more "sensi tially, our rule is there because without it, 606623-8413 five" tothe privacy concerns of civizens, people will notrespect our Constitution, basing his consent outof"respect" for the because it is anathema to have a rule 4th Amendment and Section 10. Collins requiring a warrant or forbidding an un v. Commonwealth, Ky., 574 S.W.2d 296 reasonable search and then to allow the 1978 J. Lukowsky, dissenting. police to flaunt that law by admitting evidence in violation of the law against The Court of Appeals relied upon Section an accused. 10 and the 4th Amendment to invalidate an "any other person" warrant. Johant While the Court in Shelton did not spell gen v. Commonwealth, Ky. App. 571 out their declining touse "good faith," it S.W.2d 1101978. is time for them to do so. They will not do so unless counsel begins to make this In an intriguing opinion, the Court of argument. Appeals relied wholly on Section 10 in Commomvealth v. Bertram, Ky. App., Most promising yet is Commonwealth v. 596 S.W.2d 3791980. There, the Court Johnson, Ky., 777 S.W.2d 876 1989. held that "it is clear as a matter of state There, the Court expressly declined to constitutional law that when a defendant condemn a search of a defendant’s motel testified in support of a motion to sup room based upon the 4th Amendment. press evidence alleged to have been Rather, they held "that the warrantless, seized illegally, his testimony may notbe forced entry by the police into appellant’s used against him later at trial over his room at the RamadaInn, violated Section objection." Ten of the Constitution ofKentucky." Id. 4880.

JUNE 1992 [The Advocate 43 Using Kentucky’s Constitution to Challenge Established Evidence Practices

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If someoneasked you to identify thelegal yers with heavy caseloads can fmd the standing of theBillofRights. Therereally authority that allows the Commonwealth law that they need when they need it. In is no way to fmd out what the Bill of to takeasample of your client’s bloodfor this article, we are going to examine the Rights means except by going through DNA testing, what would your answer issue of whether the Commonwealth can the legal history and development of the be? If you answered Schmerber v. Cali force a criminal defendant to submit a particular issue first. And it is important fornia 384 U.S. 757 196e, you would blood sample for purposes of DNA test to make an accurate statement of the law be wrong but your answer would be the ing. The issue is importantfor many rea when you first make a state constitutional answer of the majority. Schinerber does sons but chiefly because the issue in argument. Youwill be facing an unrecep not declare Kentucky law nor does it volves all aspects of Kentucky law, stat tive audience. People arenotusedto deal authorize any state to force a defendant utes, rules, common law and constitu ing with the Kentucky Constitution, and, to submit to a blood test. It only says that Uonal law. By examining the law, we will where blood tests are concerned, they under the circumstances of that case the be able to look at the important sources think they know what the law is. Telling "search" was a valid search incident to of information and legal authorities that judges that they don’t know the law is no attest because of the danger of the alco will be useful in considering other evi easy tasjc. The only way to do this effec hol metabolizing in the defendant’s sys dence questions. tively is to be as sure as you can of your tem and the reasonableness of the limited grounds and ready to back up your asser intrusion to secure the sample. 1384 U.S. It is important not to limityour argument tions with definite proof. Construction of at 768-7721. The court specifically lim to the Kentucky Bill ofRights. There is a correct arguments is not that hard, as I ited its conclusion "only on the facts of lot more to our argument under the state hope we will see below. the present record." The court noted that constitution than citation of some section "the integrity of an individual’sperson is of the Bill ofRights. Bare assertions that EXPLANATION OF THE a cherished value of our society" and Section 10 prohibits compelled blood PROBLEM cautioned that the holding in the case "in tests are not going to impress the court no way indicates that it the Constitution very much because comparison of the For purposes of this article assume that permits more substantial intrusions or in language of Section 10 with the language during their investigation of a mbbery trusions under other conditions." [384 of the 4th Amendment shows that it is case in which the prosecuting witness U.S. at 772]. quite similar. Under these circumstances, received a serious knife wound the police the court can decide according toits own found fresh blood at the scene that upon Relying on the last paragraph of Schmer preferences. But the court’s discretion in testing turned out to be a type different ben, you could argue that because your ruling will be limited if it knows that RCr from that of the prosecuting witness. On client’s DNA is not going to evaporate or 7.24 doesn’t authorize compelled blood the basis of a weak eyewitness identifica metabolize the 4th Amendment would tests in criminal cases, that under com tion by the prosecuting witness your cli prohibit taking a blood sample for that mon law a person’s body cannot be sub ent has been arrested and jailed on a purpose. [Winston v. Lee, 470 U.S. 753 jected to non-consensual intrusion in the criminal complaint. No other evidence 19851. But the problem is that for 25 *bsence of a positive enactment of law, implicating your client has been found years no one has paid any attention to the that Section 11 ofthe Constitution con so, citing Schmerber and Newman v. last paragraph of the majority opinion stitutionalizes this principle, and that Stinson, Ky., 489 S.W.2d 826 1972 and consequently everybody thinks that Section 11 prohibits forced disclosure of along with the needfor the test, the prose Schmerber authorizes a blood test any any fact that might incriminate the defen cutor has filed a motion to get a sample time a police officer or prosecutor says dant, testamentary or otherwise, of your client’s blood for DNA identifi that she needs it. Winning a 4th Amend cation. How do you prevent this? mentelainrwould be a real accomplish To obtain this information it is necessary ment. to develop a method of approaching a INITIAL RESPONSE case that goes beyond citing the state This situation is an unhappy result of Bill constitutional analogue of a federal right. The case is in the district cpurt at this of Rights worship that defense lawyers To obtain this information we have to point because of the criminal complaint. have been guilty of for years. Defense examine the structure of government un Your client is charged with first degree lawyers have focused on the federal Bill der the state constitution, the history of robbery, a Class B felony. There is no ofRights for so long that our knowledge law in Kentucky and elsewhere, the sub need to get fancy or to worry about the of state law has atrophied and now that stance and interplay of Kentucky com Bill of Rights here. The winning response federal cases are coming down against us monand statutory law, and the text, struc is lack of jurisdiction to grant reliefon the we have to scramble to find out what the ture,- and meaning of the Bill of Rights of motion. state law is and how we can use it to the Kentucky Constitution. The order in protect our clients from unfairtreatment. which the method is set out is significant The district court is a court of limited The state law in many cases is favorable and intentional. Each of the first three jurisdiction. "and shall exercise original to our clients. The question is how law- parts contributes to an accurate under- jurisdiction as may be provided by the

JUNE 1992 /TheAdvocate 44 General Assembly." [Constitution, Sec RESPONSE IN THE CIRCUIT RESPONSE IN CIRCUIT COURT - tion 11361. The district court has juris COURT - RULES JURISDICTION AND diction to dispose of all juvenile matters COMMON LAW and all misdemeanor cases, but it does not The circuit court has jurisdiction of this havejurisdiction to make a final deposi charge, so a different approach is re The Supreme Court under Section 116 of tion of any felony. [KRS 610.0101; quired. [Constitution, Section 1125]. It the Constitution is authorized to enact 24A.11O1, 2; 24A.130]. In felony is easy to deal with the discovery argu "rules of practice and procedure for the cases it has jurisdiction concurrent with ment because the text of Chapter 7 does Court of Justice." By definition, rules of the circuit court "to examine any charge not allow the discovery that the Com practice andprocedure exist to providean of a public offense denominated as a monwealth seeks. It is important to note orderly framework for the exercise and felony or capital offense.. . and to com first that discovery in criminal cases is a application of the substantive law. Sec mit the defendant to jail or hold him to relatively recent innovation, becoming tion 116 cannot be a basis for compelled bail or other form of pretrial release." available only in 1962 when the Criminal blood tests in criminal cases. The Su [KRS 24A.11O3]. This is it as far as Rules were adopted. [Ky. Acts, 1962, Cli. preme Court has never and legally can felony jurisdiction goes. The Criminal 234, p. 807]. RCr 7.24th its present form never enact a court rule that would sup Rules place similar limitations on the dis was not adopted until 1968. Before 1962, port a forced blood test. It would be an tiict court in felony cases. Under RCr the Criminal Code of 1854 made no pro abuse of the linii ted authority given to the 3.14I,the onlything that adistrictcourt vision whatever for discovery or inspec Court under Section 116. Rather, only the may do at the preliminary hearing on a tion. [Carroll’s Kentucky Codes, 1948 General Assembly of Kentucky has the felony charge is determine probable Rev., Ch. 4, Sections 150-153; Evans v. authority, if it exists, to compel a blood cause and hold the defendant over for the Commonwealth, Ky., 19 S.W.2d 1091, test. grand jury. There is no provision in the 1093-1094 1929]. Production of evi statutes for the district court to entertain dence was limited to depositions and sub Section 29 ofthe Constitution assigns the motionsin the nature of discovery, which poenas to appear at trial. At common law, legislative power of government to the is what a motion for a blood test is. tinder there was no discovery at all. [6 Wigmore General Assembly. A major part of that the Constitution,the district court’sjuris Evidence, Section 1845, Section 1860, power is the authority to declare public diction is only what the General Assem Section 1859 Chadbourne Rev., 1976; policy, that is, the authority to decide bly says it is. In the absence of specific 2 LaFave and Israel, Criminal Proce what the law of Kentucky should be. "It authorization, the district court could not dure, Section 19.31984]. Because there is elementary that the legislative branch rule favorably on the motion for blood was no discovery before the enactment of has the prerogative of declaring public test even if it wanted to.The text of RCr the criminal rules, discovery in Kentucky policy and that the mere wisdom of its 3.07 confirms this conclusion. criminal cases is what the Supreme Court choice in that respect is not subject to the says it is in Chapter 7 and no more. judgment ofa court." fFann v. McGuffey, In that rule, the mode of proceeding is Ky., 534 S.W.2d 770, 779 1975]. The determined by the nature of the charge. A circuit judge proceeding under RCr Supreme Court has recently recognized In a felony case,a disthct judge does not 7.24 is limited by what the rule allows. the limitation of its authority to deal with have authority to try the offense charged The circuit court has no authority on its subjects of substantive law in Mash v. and therefore the judge "shall proceed" own to go beyond the limits of the rule Commonwealth, Ky., 769 S.W.2d 42 in accordance with Chapter 3 of the and the rule does not provide for com 1989. There the Court noted that Sec Rules. Ajudge may proceed under Chap pelled blood tests. It only allows for re tion 29 of the Constitution "gives all leg ter 7 [discovery] of the rules only when ciprocal inspections and for copying of islative power to our General Assembly" she has "authority to try the offense the results of scientific tests or physical and that Section 28 of the Constitution charged." The district court is compelled examinations "which the defendant in "prohibits all persons or collections of to honor this limitation because the rules tends to introduce asevidence," or which persons of one of the three departments govern all proceedings in the Court of were prepared by "a witness who the from exercising any legislative power Justice. [RCr 1.02l1.Themotionforthe defendant wishes to call at thaI." [RCr properly belonging to the other one." In blood sample fails in the district court 7.243Aii]. In a recent addition, the Mash, the Court acknowledged that it had because the court is forbidden by the rule provides that if a defendant intends no authority to add to the statute govern criminal rules, by Chapter 24A of the to rely on a defense of mental disease or ing arrest. statutes, and by Section 111 of the Con defect, a court may order him to submit stitution to grant the relief requested. to a "mental examination." I RCr Review of the statutes show 11 instances There is no need to resort to any other part 7.24Bii. The defendant is granted in which the General Assembly has of the constitution at this point. confidentiality if he does participate, but authorized non-consensual blood testing he also can refuse to submit to the exami or forced medical treatment and testing. THE NEXT STAGE OF THE nation. [RCr7.243B; 3C].Thisright Three of the statutes are the "implied PROBLEM of refusal is analogous to the right of a consent" statutes for DWI. In each such civil litigant to refuse to submit to a statute, the subject has the right to refuse Assume now that the Commonwealthhas physical examination for determining the test, although he does so at the cost of obtained a first degree robbery indict blood groups under CR 35.01. A party his driving privilege. [KRS 189.520; ment by direct submission to the grand who refuses to submit to the tests may 189A.100; 1g6.565]. Children must be jury. The Commonwealth files the same suffer procedural penalties and may lose immunized against diseases unless there motion in the circuit court and the circuit his casebut the court cannot coerce sub is a religious objection and, unless there judge enters an order granting you dis mission to the test by its contemptpower. is a religious objection, each newborn covery and granting the Commonwealth [CR 37.022d]. The court cannotcom child must be tested for PKU [KRS reciprocal discovery. The judge has set a pel submission to an invasion of a liti 214.034; 214.155]. pretrial date to hear your objection to the gant’s body. The reasons for this result is motion for blood test and the Common found in the limits of the court’s authority There arefour situations in which a blood wealth’s claim that it is entitled to the and in the common law. test is required. A physician must get a blood sample. blood sample from a pregnantwoman at her first presentation in order to test her for syphilis. EKRS 214.1601. KRS

JUNE 1992 [The Advocate 45 406.081 requires a putative father to sub the "absolute" rights enjoyed by the sub preme Court of Kentucky in regard to mit to a blood test to determine paternity. ject was the "right of personal security" coerced physical testing. Maybe the Su KRS 215.540 requires a person pre which consisted of "a person’s legal and preme Court has authority to change the viously diagnosed to have tuberculosis to uninterrupted enjoyment of his life, his common law. However, in light of Fann submit to testing and hospitalization. limbs, his body, his health, and his repu v. McGtey, it seems unlikely. A right as And, a convictedprostitute "shall be re tation." [1 Blackstone, Commentaries, important as a person’s right to physical quired to undergo screening for human [17651, U. of Chicago Reprint, p. 125 mtegnty and freedom from invasioncan immunodeficiency virus infection." The 1979; Posner, The Economics of Jus notbe disposed of by the ad hoc determi person "shall submit to treatment and tice, p. 15-18 19831. This right is a nations of the circuit court judge. I be counselling as a conditionof release from natural right that pre-dated the develop lieve that such a rule, if it is possible probation, community control or incar ment of government. And it was so under the Constitution, can be enacted ceration." [KRS 529.090]. This statute deeply implanted in the common law that only by the General Assembly. Because stands in contrast to KRS 214.1815 historically no court could order an act that body has not acted, we must con which prohibits WV testing without in- contrary to the rule without a specific clude that the circuit court does not have formed consent except in cases of emer statute authorizing th act. [Smith v. jurisdiction to order the test on its own gency. Southern Bell Telephone Co., Ky., 104 authority. S.W.2d 961, 964 1937]. The leading Both CR 35.01 and RCr 7 were enacted case on this point is Union Pac4fzc Rail THIRD STAGE OF THE as statutes by the General Assembly in way v. Botsford, 141 U.S. 250 1891 PROBLEM 1952 and 1962, well before the adoption which held that the federal courts could of Section 116 of the Constitution. All not order a physical examination of a Assume that while the prosecutor was thesostatutes indicate hesitation to force defendant in a civil case in the absence of reviewing her file she found an unexe anyone to submit to any form of medical statutory authority. The principle relied cuted but facially valid search warrant or physical testing or treatment. Fivespe on in that case was that that was signed by a circuit judgeand that cifically provide that a person cannot be authorizes the police to take your client compelled to submit while two more al "No right is held more sacred, or is more to a hospital for the purpose of providing carefully guarded, by the common law, than a blood sample forDNA testing. She has low for a religious exemption. A woman posses may avoid the syphilis test by not seeing the sight of every individual to the attached the warrant and affidavit to her sion and control of his own person, free from memorandum, and now argues that be a doctor. In any event, the statute does not all yestraint Dy interference of others, unless the doctor to coerce a sample. cause a judge has issued a search warrant authorize by clear and unquestionable authority of information with respect to A person must submit to TB testing and law." 1141 U.S. at 251. and that the treatment, but onlyafter being diagnosed the blood test is not stale the Common wealth may rely on the warrant to getthe for that disease. A convicted prostitute Nothing in Kentucky law clearly author not prevail on must submit to testing and treatment, but izes coerced blood testing in the absence blood test even if it does onlyafter conviction. The only pie-adju of statute. The more reasonable view of other arguments. dication blood testthat can be compelled the situation is that the person’s common statute law of Kentucky is the is soimpor RESPONSE - KENTUCKYBILL under the law right to personal security OF RIGHTS test of a putative father under KRS taut that only an act of the General As 406.081. But the purpose of this test is as a matter of public sembly, declaring If the circuit court does notrule favorably determination of paternity for purposes policy the necessity of invasion, is suffi grounds of child support. The only reasonable coerced physical testing or on the jurisdictional and legal cient to justify already presented, recourse to the Bill of conclusion tohe drawnis that the General treatment. As we will see in the constitu obvi Assembly has determined the public pol believe Section 11 of Rights is the next step. The most tional argument, I ously apt sections for the problem in this icy of Kentucky to be that no person, the Constitution constitutionalizes this 11. Other interest of public health, another argu stage are Sections 1,2,10 and except in the principle thus presenting provisions may apply tangentially, but support of children, or after adjudication ment against ad hoc orders requiring with the of guilt of a crime, may be compelled to the sections just named deal blood test. substantial issues presented by this prob submit to any medicaltreatmentor physi the applicability cal tests. One other possible argument in support lem. Before examining order tests is based on of the provisions however it is important of the authority to to consider what we are doing. There are Of course, the prosecution can argue that the case of Newman v. Stinson, Ky., 489 constitutional where a specific statute has not sup S.W.2d 826 1972. Newman is often some ground rules about common litigation that should be laid outand I do planted the common law, the cited in compelled blood test motions. few paragraphs. law prevails. [N. Ky. PortAuth. v. Cor That case ostensibly holds that there is no so in the next But blood nell, Ky., 700 S.W.2d 392 1985]. constitutional violation in coerced importantrule is found in Sec the common law is clearly against such testing. But what is often overlooked in The most implied tion 26 of the Bill of Rights. Section 26 an argument for compelled testing. The this case is that it involves an all substantive provisions of the suborthnatetourtsof the Court of Justice consent statute, KRS 186.565, which says that of the Bill Sections 1-25 are "excepted out of are required to follow the precedents deems theperson to have consentedto general powers of government" and the appellate courts. ISCR 1.0405].The blood test by the act of operating a motor the errors are "inviolate." The general powers of precedents are clear vehicle. Aside from the historical the legislative, judicial contained in this opinion, it is obvious government are adult years and and executive powers delegated and as "Evety human being of that if a person has consentedin advance of govern sound mind has a right to determine what legitimate signed to the three branches to the tests, there can be no 29,69 and 109 of shalt be done with his own body." Tabo v. objection to the test. ment in Sections 27, Scobee, Ky., 254 S.W.24 474, 475 1952]. the Constitution. Section 26 declares tin- cannot to me that the circuit ambiguously that the government The only exception to this rule occurs It seems obvious do away withany part of th Bill ofRights court does nothave jurisdiction to ignore to the when thereis an emergency that prevents law of Kentucky and the nor can it, without amendment the person from indicating his desires. the common Constitution. modify any sections. This clearly expressed wishes of the General for This rule is not an innovation. In English and of the Su language was copied almost word common law, the most fundamental of Assembly of Kentucky

JUNE1992 The Advocate 46 word from the last section of the VU! of Court of Justice have the authority to do sachusetts DeclarationofRights of 1780. Rights of the Pennsylvania Constitution what they have done unless there is a [1 Debates, 435; 779-780]. The first sen of 1790. However, the drafters of the specific prohibition found in the Bill of tence of Section 1 proclaims that all men Kentucky Constitution of 1792 aIded a Rights or the Constitution. The rule for by nature are free and equal and that all second clause to underscore the absence the executive branch is somewhat differ have certain "inherent and inalienable of governmental authority to undermine ent as we will seeinthe last section of this rights," that is, rights that are notsurren the protections of the Bill of Rights. The article. dered upon the formation of a govern secondclauseprovides that "all laws con ment. The first such rightis the right of". wary thereto, or contrary to this Constitu Assuming that you fmd a rule that in enjoying and defending their lives and tk’n, shall be void." This innovation by fringes on but does not obliterate a right liberties." The liberties referred to inthis the drafters of the Kentucky Constitution found in the Bill of Rights, does the sentence are, I believe, the natural rights of 1792 has been retained in each of the "void" language of the lastclause of Sec of personal liberty, which include the three subsequent constitutions. It has tion 26 mean that the court is bound to right of personal security. There is no been interpreted in a number of cases to declare the act or law unconstitutional opinion of the Kentucky courts saying so mean just what it says, that any acts of and therefore void? The answer is "not directly, but there is a good de4 of evi any branch of the governmentcontrary to always." Although the Bill ofRights ap dence that this is so. In Commonwealth the Bill of Rights are not just illegal or pears to be written as a list of absolutes, v. Campbell, the former Court of Appeals unconstitutional, but void, asbeyond the courts generally have found two reasons in construing another part of Section 1 authority of government to enact. [e.g. not to treat them that way. The first is the relied on that portion of Blackstone’s Columbia Trust Co. v. Lincoln Institute, theory that a person may forfeit the right, Commentaries that described the abso 129S.W. 113, 116 1910]. Thisprovis by commission of a crime or some other lute rights of men. [117 S.W. at 3851. In ion is very useful when you can catch the act. [1 Blackstone Commentaries, p. 54; another case, Smith v. Southern Bell government in a plain violation of the 140]. The other is that a person may not Telephone Co., Ky., 104 S.W.2d 961, provisions of the Bill ofRights. But at the exercise his rights where such acts will 9641937, the court discussed the tights same time it understandably makes affect the health, safety or welfare of protected by the 14th Amendment of the courts reluctant to find the violations in others. [Posner, The Economics of Jus U.S. Constitution. The court was of the the first place because there is nothing to tice, p. 15; 19; Chapman v. Common opinion that the rights protected there do in that situation except to say that the wealth, Ky., 172 S.W.2d 228, 229 "are those natural rights, which include act or the law is a nullity. This is why 1943]. But the key corollary to this the right of personal liberty, the right of courts prefer to decide cases on non-con second principle is that the government personal security, and the right to acquire stitutional grounds if they can arrange to may not prohibit an individual "any lib and enjoy property." While this is a con do it. Constitutional decisions engrave erty the exercise of which will not di struction of the life, liberty and property principles in stone. Few courts want to be rectly injury society." [Commonwealth v. clause of the 14th Amendment, it seems pinned down in that way. So, when pos Campbell, Ky., 117 SW. 383, 385 reasonable that these same tights are part sible, it is a good idea to fmd some com 1909]. l’his brings us to the first sec of the liberties enjoyed by all regardless mon law, statutory, or rule-based reason tions of the Bill ofRights pertinent to this of the existence of government.Without to cite along withthe constitutional claim issue. discussing any particular constitutional you are making in a case. sections, the court in Chapman v. Corn INHERENT AN] INALIENABLE ,nonwealth, Ky., 172 S.W.2d 228, 231 Section 26 also highlights the important RIGHTS 1943 pointed out that the right to live in difference between the functions of the peace and quiet "is one of the inalienable Federal and the Kentucky Constitutions. Section 10 of the Constitution is part of rights guaranteed to him by the Constitu It is basic Con Law I theory that the the "Pleiades" amendment presented to tion that no manor set of men can abridge federal constitution grants certain limited the 1890 constitutional convention. It is or deny." That same court noted that so powers to a federal government that may perhaps the one real innovation in the Bill longas a person’s enjoyment of his rights not exercise any powers in excess of of Rights presented at that convention. does not interfere with the legal rights of those granted. Section 26, on the other CT. Mien, the drafter of Section 1 [1 others, he must be protected in his rights. hand, expresses what might be called the Debates of 1890, 435], designed the sec "Within such protected rights are free ‘agency" theory of government. It begins tion to be the repository of the inherent dom from personal assault; freedom from with a sentence about "the high powers and inalienable rights of every human molestation, or intimidation in pursuing which we have delegated." The high person. [1 Debates, 4941. He noted that lawful engagements and freedom from powers referred to are the legislative, ex most of the rights had been scattered personal assaults or destruction of prop ecutive and judicial powers assigned in throughout the previous constitutions but erty." When Section 11 is read in con Sections 29, 69 and 109 of the Constitu that he and the drafting committee had junction with Section 2 which denies tion. There are no limitations in the text gathered them together to emphasize the government "absolute and arbitrary of those sections. Therefore, the grant is purpose of the Bill ofRights. By moving power over the lives, liberty and property one that gives the governmentthe power the Bill of Rights to the first place in the of free men" it seems clear to rue that the to do any act that the particular branch Constitution, the drafters intended to basic right of personal security, which believes is necessary or desirable. [e.g., "magnify" the individual. The Bill of existed first at common law, and which Holsclaw v. Stephens, Ky., 507 S.W.2d Rights had been the last Article of each has been described from the time of 462 1973. But just as a principal can of the previous three Constitutions. To Blackstone to the present as one of the withhold from the agent the authority to emphasize the importance of individual "absolute" rights of all persons, must be do certain acts, the people of Kentucky rights, the Bill was placed first and the protected as one of the basic liberties that who established the Constitution [Pream "inherent and inalienable rights" of per a person does notgive up upon formation ble, withheld from the agents of govern sons were placed at the head of the Bill of a government. Freedom of the person ment the right to do certain acts, i.e., the [1 Debates, 494]. is a basic liberty along with the right to right to infringe on any of the limitations vote, freedom ofspeech, freedom ofcon found in the Bill ofRights or the Consti The language of Section 11 was new to science, freedom of thought, freedom Mien. Thus, when oaching a prob the Constitution. It was inspired by the from arbitrary arrest and seizure, and the lem of constitutional law, you should as language of the Declaration of Inde right to hold personal property. [Rawls, sume that the General Assembly or the pendence and was copied from the Alas- A Theory of Justice, p. 611971]. The

JUNE 1992 /TheAdvocate 47 right of a person to be left alone physi the circumstances presented here. numbered in the 1792 Constitution, is a cally is a basic liberty and therefore is one word for word copy of Section 9 of the included in Section 1. Thom this point of SECTION 11- TEE RIGHT NOT Pennsylvania Constitution. view, the common and statutory law con TO "GIVE EVIDENCE" AGAINST cerning coerced medical testing or treat YOURSELF The 1890 convention modernized the ment makes sense. language of Section 11 and moved the The obvious difference between Section prohibition against giving evidence The right not to be subjected to such 11 of Kentucky’s Bill of Rights and the against one’s self to a position before the violation of one’s person is so important 5th Amendment is that Section 11 says listing of the public trial rights granted in that it is only when the exercise of the that "no person shallbe compelled to give prosecutions by indictment or informa right of personal security "will directly evidence against himself while the 5th tion. By so doing, it appears that the injure society" [Campbell, 117 S.W.2d at Amendment says that "the person shall drafters wished to make clear that the 385] that the state canintervene and com not be a witness against himselL" Read right not to give evidence against one’s pel testing or treatment. In each of the ers who have watched "Rumpole of the self applied to all criminal prosecutions, statutes listed earlier in this article, the Bailey" on PBS may have noticed that in not just those prosecuted by indictment violation of the individual’s rightto per England the phrase "give evidence" often or information. The text and its modifica sonal securityis premised on the General is used where Americans would say tes tion do not tell much about the reach of Assembly’s detennination that society or tify. But it would be a mistake to assume the right not to be compelled to give other individuals will be harmed in the as the former Court of Appeals did in evidence against one’s self. absenceof treatment or testing. The com Newman v. Stinson that the difference in mon law rule against unconsented to language is meaningless. The history of In the Debates of 1890, the drafters ac treatment also is understandable. The in the provision shows a distinction. knowledged the adoption in 1886 of the dividual will not hann others by refusing statute nowKRS 421.225 which for the treatment so there is no basis for compel Kentucky’s Section 11 is a close copy of first timeallowed a criminal defendant, if ling it. Rather, inthe absence of an emer Section 9 of the Bill of Rights of the he asked, to testify as a witness at his trial. gency, where treatment may be needed Pennsylvania Constitution of 1790. The At the convention, the Committee on the simply to preserve life until the individ Pennsylvania provision was patterned Preamble and Bill of Rights reported a uiaJ can make an informed choice, a doc closely on Secuon 8 of the Virginia Dec new formula for the protection which tor faces a lawsuit for battery if he acts larationof Rights of 1776. Madison, the provided that at trial the defendant "shall without consent. authorof the 5th Amendment, had been not be compelled to testify against him on the drafting committee of the 1776 self." 1 Debates, p.310]. This proposal Neither the Supreme Court nor the Gen Declaration with George Mason. [I Sch was defeated. Mother amendment pro eral Assembly have decided that a co wartz,TheflillofRights:ADocurnentary posed to add a provision that "if he intro erced blood test is proper in a criminal History, p. 231 19711. Thus, when duces himself as a witness, he may be case. Nor, under the analysis presented Madison drafted the federal language in questioned on all matters about which he here, may they do so legitimately. We are 1789, he knew of Mason’s formula for testifies." This also was defeated. [1 De told by RCr9.56l thatacriminalcharge the right. Of more importance for us, bates, 9531. The best statement about the either by complaint or indictment is not however, is the question of whether the meaning was made by Delegate Bron evidence of wrong doing. Rather, a per draftsmen of Kentucky’s first Bill of ston, who, in discussing the "old" Bill of son charged with a crime is presumed Rights knew about Madison’s formula Rights said that the protection did not innocent. Thus, there can be no question and consciously rejected it. mean only that a man could not be com of forfeiture simply by being accused of pelled to testify against himself, but that a crime. The question is whether under We know that Madison was asked by no "he cannot be compelled to disclose any these circumstances a person’sinsistence fewer than 14 Kentuckians to draft the fact which would tend to criminate him on maintaining this liberty will "directly first Constitution of Kentucky, but he self, on anybody else’s trial or anywhere injure society." I think not. A person with said that he could not because of other else." [1 Debates, 954]. To, "disclose any TB may infect others. A mother with duties. He recommended that Ken fact" does not necessarily mean to testify syphilis may infect her baby at the time tuckians consult a recently published vol at a legal proceeding. Disclosure after all of delivery. But a person who refuses to ume of state constitutions as a source for means to expose to view or to make provide a blood sample to the Common constitutional language. [Coward, Ken known or public. But one man’s under wealth only makes it more difficult for tucky in the New Republic, p. 1119791. standing of Section 11 voiced at the 1890 the Commonwealth to convict. If there is Virginiaratified the FederalBill ofRights convention is not conclusive proof of the any"injury to society because of the fail on December 15, 1791, about three and a extent of Section Ii’s protection. It is ure to cooperate it is only an indirect one half months before the opening of the necessary therefore to examine the his and certainly not of the magnitude of the Danville Convention. Each of Ken tory of the right. injuries dealt with in the statutes already tucky’s 8 counties could send 2 delegates _enacted.-Section-2 denies-the state arbi to the Virginia House of Delegates, but I It is obvious that because the defendant trary power over the lives, liberty and can’t say at this point whether any of could nottestify at trial, the original draf It. property of its citizens. The fact that it those delegates served in the Kentucky ters of the phrase did notneeda constitu would be helpful to the state to be able to constitutional convention or whetherthe tional provision to protect the defendant compel blood testing is not a sufficient members of the constitutional conven from compelled testimony at trial. Two reason to compel testing in light of these tion were aware of the language of the English cases show that the right ex constitutional barriers. Section 11 re federal Bill ofRights. What is obvious is tended beyond testimony at trial. In R. v. serves to each individual the right of en that the drafters chose to copy the 1790 Worsenham 1701 and R. v. Mead joying life and liberty. Where enjoyment Pennsylvania Bill ofRights almost word 1704, requests for production of books of this right of personal securitydoes not for word and section for section. Com made in criminal cases were refused, the directly injure others, the state has no parison of these two documents showed first on the ground that the production authority to infringe upon it and therefore 4 instances where the language differs required the party to "shew the defen has no authority under the Constitution and 2 instances where Kentucky rejected dant’s evidence" and the second on the to enact any rule or statute that would sections of the Pennsylvania Bill. How ground that it would be "to compel the reqthre submission to a blood test under ever, the 1792 provision, which was un defendant to produce evidence against

JUNE1992 /TheAdvocate 48 himself inacriniinal case." [McNajr,The clarity of its language, it is possible to Dictionary, "exigent circumstances," p. Early Development of the Privilege understand and apply the section without 574 19903. Obviously, a suspect’s Against Self-Incrimination, 10 Oxford too much danger of misunderstanding. DNA is notgoing to change or disappear JLeg.Stud., 66, 83 1990]. Therefore, at so this exception cannot be used tojustify the beginning of the 18th Century, a rule The section begins with a plain declara a coerced blood sample. The only justifi prohibiting compulsory production of a tive sentence that the "people shall be cation that conceivably could applyis the party’s evidence and "become associated secure in their persons, houses, papers "search incident to arrest" exception. A with a general right to silence." [McNair, and possessions from unreasonable search incident to a lawful arrest is one p. 83]. But evidence ofsuch an extension search and seizure." The next clause for made afteran arrest and is a long standing of the rule in America is left to vague bids issuance of warrants "to search any exception to the Section 10 warrant it statements that the state formulation of place, or seize any person on thing," quirement. [Commonwealth v. Phillips, the right must have meant something dif withoutadequate description and without Ky., 5 S.W.2d 887, 888 1928]. The ferent from the 5th Amendment state proof ofprobable cause given under oath justification for the search incident is that ment. Leonard Levy, a well-known con or affirmation. The second clause is im the person is in the control of the state stitutional historian, states the problem portant to our problem here because it after a determination of probable cause to well when he states that history does not plainly forbids the issuance of a search believe that he has committed a crime. clearly uphold the Schmerber distinction warrant to search a person. But it is important to note that the cases between testimonial and non-testimonial have only allowed a search of the defen compulsion. He notes that most forms of Section 10 cannot be considered as an dant’s person for "articles" or things. "non-testimonial compulsion"like blood authorization for the police or the prose [Phillips, at 888-8893. The reason forthis tests are of recent origin. However, he cutor to conduct a search anytime they limitation no doubt is that the drafters of notes that "the common law decisions feel it is "reasonable." Under the agency Section 10 and the members of the 1890 and the wording of the first state Bill of theory of the Constitution discussed Convention no more thought of the pos Rights explicitly protected against com above, Section lOis a prohibition or limit sibility of blood tests as a method of pelling anyone to furnish evidence on the general power of the government crime detection or evidence than they against himself, not just testimony." to exerciseauthority. The Supreme Court thought a man could go to the moon. It [Levy, Encyclopedia of the American and the General Assembly under Sec simply was not foreseen. But the Consti Constitution, p. 1575 1988]. However, tions 109 and 29 may authorize and regu tution must be applied as it is written. The a good deal more historical research on late searches and seizures within the warrant requirement and the unreason the American practice concerning the bounds set by Section 10. Neither the able search and seizure requirement of right is necessary before a firm conclu police nor the prosecutor has the inherent Section 10 must not be seen as separate sion can be reached. power to search. [Brown v. Barkley, Ky., considerations. The "unreasonable 628 S.W.2d 616, 623 1982; Common search" clause, as we have seen in the Atthis point, the best thitcan be said is wealth v. Wezzel, Ky., 2 S.W. 123, 125 beginning of this section, does not * that the difference in language between 1886]. Their powers are what the Gen authorize inventive ways to get around the federal and state provision, the prohi eral Assembly and the Supreme Court the warrant clause. Where emergency bition against defendant testimony at the "choose to give them." conditions are shown, the police are al time of adoption, the existence of some lowed to act to protect themselves, to cases extending the tight to the produc The authority to arrest on a warrant detain suspects and to prevent loss or * tion of record books, and Bronston’s comes from RCr 2.04 et seq. and RCr destruction of evidence. No more is nec * comments about forced "disclosure" at 6.52 et seq., as well as KRS 431.005. As essary and no more has been authorized the 1890 convention indicate that the noted in Mash v. Com,nonwealth, Ky., by any decision of the Kentucky Courts. phrase "give evidence" means more than 769 S.W.2d 42, 44 1989, the power to A valid arrestdoes notjustify violation of just testimony. The rule for construing arrest without a warrant is only what the a defendant’s right of personal security. constitutional privileges designed for the General Assembly has allowed in KRS An arrest does not amount to a forfeiture security of persons and property is that 431.005. Searches by warrant are author of the right. It would be bizarre in the such provisions should be construed lib ized by RCr 13.10, which specifically extreme for the law to provide 1 that no erally. [Commonwealth v. O’Harrah, refers to the limits set by Section 10. The warrant may authorize a blood test, 2 Ky., 262 S.W.2d 385, 389 1953]. Tn power to search without a warrant is de that once the defendant is lodged in jail plain terms, this means that if a decision fined in the decisions of the appellate RCr 3.02 prohibits any blood test, and 3 has to be made on a doubtful proposition, courts that specifically describe the cir that the rules of discovery do not permit the court should err on the side of security cumstances under which warrantless a blood test, but still hold that a police and liberty for the individual. This rule searches can occur. officer is allowed, in the short period of should apply to Section 11, and therefore time betweenarrest and presentation to a coerced blood tests should be prohibited The rule in Kentucky is that any search judge or to a jailer, to force the accused under the "give evidence" clause of that or seizure not authorized by warrant is to submit to a blood test. It is clear that section. unreasonable. [Brent v. Commonwealth, none of the exceptions to Section 10 per Ky, 240 S.W. 45 1922; Common mit such a test. SECTION 10- UNREASONABLE wealth v. Johnson, Ky., 777 S.W.2d 876, SEARCH AND SEIZURE 880 19893. Section 10 authorizes 2 CONCLUSION types of warrants, the fIrst to search any Section 10, like the federal 4th Amend- place, the second to seize any person or The conventional wisdom is that the * ment, is written in 2 parts. Comparison of anything. The plain language of Section Commonwealth wins blood test motions. the 2 parts shows them to be similar, but 10 does not authorize warrants to search However, in this article we have seenthat Section 10 was copied from the 1790 persons. Court decisions authorize this commonly held assumption rests on Pennsylvania Bill of Rights. The only searches of the person, but only in "exi a weak foundation. The problem pre changes since adoption of Section 10 in gent" circumstances. Exigent circum sented hereshows the necessity of cover 1792 have been changes of syntax. There stances are "emergency-like" circum ing every base when attacking an estab is not a lot of historical information on stances that demand immediate action to lished evidencepractice. Each part of the this section, but because of a well devel prevent escape of a suspect or loss or argument supports the others, and the oped body of case law and the relative destruction of evidence. [Black’s Law combination of all parts shows that the

JUNE 1992/The Advocate 49 practice is not justified, either under the law or the Constitution. Although it is difficultto find out much about the origi nal intent of the drafters of the Kentucky Constitution, it is possible by examining Duty of an Advocate the history and development of the court system and of various procedural prac tices to make good inferences as to what was considered proper. At a minimum there must be a positive enactment of law by the General Assem bly authorizing blood tests for the pur pose of DNA identification for such tests to be lawful. Invasion of the right of personal security is one so &avethat only the General Assembly, which is charged There are many whom it may be needful to with declaring the public policy of Ken tucky, should make the Even decision. remind, that an advocate - by the sacred duty so, a defendant’s refusal to cooperate in gathering evidence against himself is not the type of direct injury to society that of his connection with his client - knows, in justifies the enactment of other statutes that we have looked at in this article. the discharge of that office, but one person in

As to the applicability of Section 11, I the world - that client and none other. To think it is clear that a good deal more historical research is necessary. Many serve that client by all expedient means; to sources hint that Section 11 covers a broader range than the 5th Amendment, but nobody has found conclusive evi protect that client at all hazards and costs to dence that this is so. This is a question that lawyers in Kentucky could under all others even the party already injured, take to answer. and, amongst others, to himself, is the highest Finally, I think it is clear that Section 10 has little to do with the question of blood and most unquestioned of his duties. And he tests for developing evidence of guilt. It is only through the search incident to arrest exception that the Commonwealth must not regard the alarm, the suffering, the could hope to justify a blood test, But in light of the almost universal prohibitions torment, the destruction, which he may bring against such tests in other stages of a criminal prosecution, the search incident upon any others. Nay, separating even the must be limited to the outside of a person. duties of a patriot from those of an advocate, J. DAVID NIEHAUS Deputy AppellateDefender Jefferson District Public Defender he must go on, reckless ofthe consequences, if 200 Civic Plaza 719 West Jefferson Street his fate should unhappily be to involve his Louisville, Kentucky 40202 502 625-3800 country in confusion for his client.

Lord Henry Brougham 1778 - 1868

Lord Brougham was an English barrister, poli tician, attorney-general, chancellor, and acted as counselfor poor prisoners.

JUNE 1992 iT he Advocate 50 T.J. MIDDLE’S EFFORT LED TO STATE BILL OF RIGHTS LAW

THOMAS JEFFERSON: KEEPING PROJECT LIBERTY BILL OF RIGHTS IN EACH KY 1115 DREAM ALIVE SCHOOL Thomas Jefferson Middle School’s stu Liberty is the essence of Kentucky’s heri dents and staff began Project Liberty Thanks to the lobbying efforts of 420 tage. Even before statehood, as a part of three years ago, the theme was "THO students at Thomas Jefferson Middle Virginia, Kentucky was the home of MAS JEFFERSON: KEEPING HIS School, 30,000 classrooms in Kentucky many Revolutionary War heroes. Per DREAM ALIVE." Our goal was to will have copies of the Bill of Rights haps that might explain why eleven of the achieve the passage of legislation which posted on their walls. fourteen delegates from western Vir would place a prominent copy of the Bill ginia, soon to become Kentucky, op of Rights in every public school class "This shows us that us kids do have a posed the Federal Constitution at the Vir room in our state. As a result of our word," said La Chonda Williams, 14, of ginia Convention in 1787. This original efforts, there is now a commemorative Newburg, one of the students who suc Constitution did not guarantee the indi copy in all 30,000 public classrooms in cessfully lobbied for a new state law it vidual liberties sought by patriots in their the state of Kentucky. quiring the postings. It shows"that we can struggle for independence. do something even though we aren’t old To further celebrate the bicentennial of enough to vote." Nevertheless, this protest was of great the Bill ofRights on December 15, 1991 historical significance. It contributed to and the bicentennial of Kentucky on June Last year, Ron Greene, Ann Rosa and the eventual adoption of our constitu 1,1992, we at Thomas Jefferson are pro Charlie Metzger’s eighth-grade social tional liberties, The Bill of Rights, in posing that the nation follow Kentucky’s studies classes drafted a bill-eventually 1791. The protest led to statehood for leadership: that all states pass legislation called the Greene Resolution-directing Kentucky in 1792, and promoted a free placing The Bill ofRights in every United public schools to post the Bill of Rights new spirit to meet future conflict. That States public classroom. This in corn in each classroom. Greene said the stu challenge soon rose with the passage of memoration of the 200th anniversary of dents started the ptoject to commemorate the Alien and Sedition Acts by the Fed this nation’s liberty. last year’s 200thanniversary of the U.S. eral government. These laws were a di Constitution. rect assault on the freedoms of speech, In addition to this press we have included press, and due process of law. a historical sketch of Kentucky’s great State Rep. Dan Sewn, D-South Louis heritage in support and protection of this ville, introduced the students’ bill in the Kentucky was first to take a stand for its nation’s liberties. These statements were Kentucky General Assembly. It passed citizens rights.TheKentuckyLegislature researched and written by the students of Unanimously and was signed into law by responded to the people’s demand with Thomas Jefferson Middle School. Gov. in March. "The Kentucky Resolutions." Authored by Thomas Jefferson, these resolutions Thomas Jefferson Middle School During a school assembly earlier this reaffirmed a system of checks and bal 4401 Rangeland Road month, Seum said he was proud that these ances established in the Constitution for Louisville, KY 40219 students were committed to educating the protection of individual liberties, and 502 473-8273 other students about an important na also called for the repeal of the Alien and tional document. Sedition Acts. The Virginia Legislature proposed similar resolutions, but before "Everything that happens in this world any further action took place, Thomas has a beginning," Sewn told the students. Jefferson, in 1800, was elected President, And you can be proud to know that this and the Alien and Sedition Laws were all started here. That’s something you can repealed. remember until the day you die." In honor ofthis rich heritage we are plan Seum said other schools that post the Bill ningnumerous events to publicly educate of Rights do not need to have elaborate and celebrate the Bill of Rights and Ken copies made. He said students could ful tucky’s Bicentennial. Some of our efforts fill the state law by either writing or typ include: requesting a resolution placing a ing the document and posting it on the copy of The Bill of Rights nationwide in wall. every public classroom; seeking a na tional figure to sponsor our project; and Jason Cochran, 14, of Highview, said he requesting the issuance of a bicentennial feels satisfied that he and his classmates’ stamp honoring Kentucky’s 200th anni social studies project turned out so well. versary of statehood. Jason said it would be neat if they could get schools across the country to do the Students and Staff same thing - M. David Goodwin Thomas Jefferson Middle School

JUNE1992 ITheAdvocate 51 _____

Reprinted from the ABA Journal, by per mission of the American Bar Association.

Wellington debunks the con always bound to read public moral servatives’ effort to divine the Fra ity as favoring advances in individ mers’ original intent and derides ual freedom. Thus, on abortion their cramped notion of judicial rights Wellington rationalizes the deference to demonstrably imper Court’s slow retreat from Roe v. fect legislative bodies. But, to the Wade. He reasons that while public possible chagrin of civil libertari morality did not support the old ans, Wellington also argues that the strict anti-abortion laws, the new Court’s power ulti approach was wrong mately depends on pub because it was not "po lic values and public litically digestible." morality more than on Under this view, a special role for pro it would seem, consti’ tecting individual lib tutional rights must erties: always be in flux, Wellington be dependent on shifts in lieves the Supreme publid opinion as felt Court should interpret by nine unelectedjus the Constitution by tices. This concerns common law princi Wellington no more ples, evolving its views than the sight of Order in over time and based demonstrators outside on experience rather the Supreme Courthop the Court than on slavish adherence ta the ing to influence the votes on abor past or to constitutional text. He tion. The Court is not an apolitical views this process ofjudging as one institution, he writes, and "this is INTERPRETING aspect of governing just aS legiti not a sign that it is malThnctioning." THE CONSTITUTION: mate as legislating or executing the Wellington’s book is the first in laws. a series that Yale University Press The Supreme Court Wellington makes no apology plans on legal topics that it hopes And the Process forthe Court’s counter-majoritarian will be provocative and accessible to Of Adludication power. Undemocratic aspects, he expert and lay readers alike. Th By Harry H. Wellington points out, abound in American ward that end, Wellington keeps Yale Univ. Press government: from the Framers’ de footnotes to a minimum, though he New Haven, Conn. cision to represent states rather is less successful in avoiding jargon. $22.50; 192 pages than people in the Senate to the The book’s greEtest weakness, how modern-day system of political in ever, is the maddeningly professo Reviewed by Kenneth Jon fluence and campaign fmance that rial style that will leave readers gives the wealthy disproportionate often crying, "Yes, but what do you The debate over the Supreme power in Washington. think?" Court’s role and the justification for The judiciary’s unique contri Embedded in this mass of So its seemingly undemocratic powers butionis its ability-and obligation- cratic questioning is a thesis that has raged throughout U.S. history, to elevate one principle above other challenges both conservatives and but perhaps never more pointedly considerations: treating like cases liberals. Wellington refuses to let than today. A conservative school of alike, and laying down rules that conservatives get away with their thought has gained in influence at achieve that end consistent with the patent misuse of history and their the Supreme Court and in the fed open-ended Constitution the Fra unreasoning obeisance to flawed eral judiciary, challenging expan mers gave us. political processes. sive views of the Court’s power and That duty explains why the But Wellington also says, in constitutional rights that had held Court can strike down an anti-flag effect, that liberals have no theo sway since the New Deal. burning law enacted by Congress. retical justification in using the Yale Law Professor Harry H. Members of Congress can read the courts to conspire against prevail Weffington has weighed into this Constitution, it is true, *but their ing public sentiment. debate with an extended essay ad core function is political rather than Wellington agrees that courts vancing a thesis that will give no legal. The Court, on the other hand, have a particular function in pro comfort to the conservatives but will must judge a congressional enact tecting individual freedom, but they also cause some ambivalence among ment on whether it can be applied to do not exercise that role in a vac liberals. other like cases consistent with uum. Those who want to maintain constitutional principles as shaped and, enlarge constitutional rights Kenneth Jon is a senior editor by prevailing public morality. must engage notjust in the courts of at Congressional Quarterly and an The disappointment for liber law, but also in the court of public adjunctprofessor at Georgetown Uni als, however, comes from Welling opinion, where the final verdict will versity Law Center. ton’s view that the Court is not be given.

JUNE1992 /TheAdvocate 52 FOREWORD

The Constitution of Kentucky is the principal law of the Commonwealth. Its authority is superseded only by the Constitution of the United States and federal law. Ken tucky’s preEent Constitution is the fourth to be used by the state. It was written in 1890-9! and became effective in 1892. Previous Constitutions of the Commonwealth were drafted in 1792, 1799, and 1849.

The Consiiiution of 1891 has been in effect for a much longer period of time than any ofits predecessors. Since its implementation, Kentucky, and indeed the world, has seen drastic alteration and development in the areas of technology, commerce and finance, governmental operation and management, and general social structure. Ironically, our Con stitution was written during a period of distrust of such change. The resultant lengthy and specifically worded document has often been criticized as. lacking the flexibility to adapt to the changing times.

Sixty attempts to amend the Constitution have been made since its implementation in 1892, but only 27 have been successful, the most recent in 1986. in 1967, proposed major revisions in the present Constitution were submitted to the voters, the result of efforts by a special Constitution Revision Assembly created by the legislature. The vote was overwhelm ingly against the proposed changes. Four Unsuccessful attempts also have been made, over the years, S call a constitutional convention to draft a new Constitution. The most recent such failure occurred in November 1977.

In January of 1987 the Legislative Research Commission created the Special Com mission on Constitutional Review. The LRC was mindful that recent past attempts at wholesale constitutional overhaul have lacked popular support. The Special Commission was therefore charged with conducting a section by section review of the Constitution. Sug gestions made for improvement of these sections.might then serve as a guidepost for con stitutional amendments offered for voter approval over a number of years.

This report is the result of the initial review of the Special Commission on Constitu tional Review. It contains seventy-seven individual suggestions for alteration of our constitu tional document. The Special Commission on Constitutional Review is officially constituted as a bOdy until May of 1988, at which time the LRC will evaluate its effectiveness.

Vic Hellard, Jr. Director

The Capitol Frankfort, Kentucky 1987

JUNE1992 /TheAdvocate 53 RECOMMENDATIONS OF THE

SUBCOMMIrrEE ON BILL OF RIGHTS/ELECTIONS

George Street Boone, Chairman Albert Quick, Vice Chairman Judge Daniel Schneider Representative Paul Clark Senator Gus Sheehan Judy Clabes

JUNE 1992 IThe Advocate 54 SENATE MEMBERS HOUSE MEMBERS a.s. W. Beg.r Asistant President P.o Tern Pet. Worthington Speaker Pro tern Joe Wright Majority Gregory D.Stgrnbo LEGISLATIVE RESEARCH COMMISSION Majority Floor Leader JclinD.Rcge,s State Capitol Minority Floor laser Frankfon. kentucky 40001 502464.5100 Woody Men Minority Floor Leader Deb4dk.Karem John A. "ECk’ Roes. Senate President Caucus Pro Tern Jody Richards Donald J. Blandford. House Majority Caucus Chairman Dr. Jack Tasty Speaker Minority Caucus Chairman ken Harper Minority Caucus Chairman S Gnu Vie Hullerd. Jr. Majority W Kenny Rapier Director Majority Whip Eugene P. Start Mrno.ity Whip SW UI. September 1, 1987 Minority Whip

House Speaker Donald J. Blandford Senate Président Pro Tern John A. Rose Members, Legislative Research Commission State Capitol Frankfort, KY 40601

Pear Speaker Blandford, President Pro Tem Rose, and Members, Legislative Research Commission: The Subcommittee on Bill of Rights and Elections was charged to review various sections of the Constitution and to assign priority rankings to suggested changes. These sec tions relate to the Bill of Rights, elections, officers, lotteries, duelling, treason, and constitu tional revision.

The Subcommittee held four s eetings between February 27 and June 17, 1987. Subcommittee members recognized the importance of the opinions of interested mdi’ iduals and assoóiatIons. The followIng were invited to recommend changes in, or additions to, the Bill of Rights:

I. Former Chief Justice Palmore 2. Chief Justice of the Kentucky Supreme Coun 3.. Chief Judge of the Kentucky Court of Appeals 4. President, circuit Judges Association 5. President, Association of District Judges 6. Kentucky Attorney General 7. President, Kentucky Defense Counsel 8. President, Kentucky Academy of Trial Attorneys 9. Criminal Defense Attorneys’ Association 10. Kentuky Public Advocate 11. President, County Attorneys’ Association 12. President, Commonwealth’s Attorneys Association 13. Department of Political Science, University of Kentucky

JUNE1992 IThe Advocate 55 September 1, 1987 Page Two

14. Department of Political Science, Univórsity of Louisville 15. A professor at Chase College of Law 16. Three professors at University of Kentucky College of Law 17. Lexington Herald Leader 18. Editor, Louisville Courier-Journal

Bill of Rights

The Subcommittee devoted substantial time to analysis and consideration of the BilI’of Rights, the first twenty-six sections of the Constitution Areas of concentration in cluded issues of individual privacy, prosecution by information, the exclusionary rule, detention of material witnesses and electronic surveillance. In addition to examination of current constitutional provisions, applicable case law was considered, and an exhaustne Survey was made of proisions of constitutions of other states.

The recommended changes are considered to be in keeping with the spirit of the current provisions and to reflect concern with contemporary social problems and technological developments, as well asciarification of such matters as references to gender.

The only recommended provision on which the voting approval was close was in reference to a limitation on the imposition of the death penalty. Elections

The number of elections conducted inthe state was discussed at length, and it is recommended that elections in odd-numbered years be eliminated Since Kentucky holds both a primary and general election each year, annual election expenses are approximately $4 5 millIon The frequency of elections was believed to contribute to a voter turnout in Ken tucky lower than that found in many other states.

The hope is that reducing the number of elections could cut costs while increasing citizen participation in the electoral process. Sfficas

It was the consensus that the section placing a maximum limit of $12,000 upon the compensation of public officers was long outmoded, not a constitutional matter, and should be repealed Removal was considered desirable, since the limitations were long ago rendered ineffectual by court rulings which permit annual salary adjustments based upon changes in the consumer price index. Such limitation should be addressed by statute.

JUNE 1992 IThe Advocate 56 September 1, 1987 Page Three

Section 234 now requires that public officers reside within their respective jurisdic tions. The Subcommittee recommends that the General Assembly should control the residen cy requirements of appointed or employed officers, as distinguished from elected officials. This change would give the General Assembly more control over the large number of unelected employees who hold increasing authority. the Section 145 should be amended to permit the General Assembly to establish voting residency requirements, since the curient provisions of the section have been held no longer Ic, effective because they are iii conflict with the U. S. Constitution. Statutory provisions con- of cerning residency do conform to the federal court decision but are thus in conflict with state constitutional standards. Lotteries

The Subcommittee concluded that the issue of lottery should be addressed by the General Assembly. It reóommends repeal of the current section prohibiting the establish ment of a state lottery. The legislature should have the option either to prohibit or to establish a lottery and to designate the use of net proceeds.

Duelling

Current constitutional provisions concerning duelling reflect the era in which the Constitution was .adopted. The Subcommittee recommends removal of such references, in. cluding the one which is presently included in the oath of office. It is suggested that the docu ment incorporate the simple and dignified oath included in our 1799 Charter. Priority

The Subcommittee recommends that the first priority be given to adding Bill of Rights sections relative to privacy, prosecution by information, and equality. Second priori ty should be assigned to the addition of the exclusionaryrule and a death penalty provision. Other recommendations are considered important but of less urgency. Very truly yours,

George Street Boone Chairman Subcommittee on Bill of Rights, Elections and Con stitution Commission on Constitutional Review GSB/bcr

JUNE 1992 IThe Advocate 57 I

SUBCOMMITTEE ON BILL OF RIGHTS/ELECTIONS

AMENDMENT PROPOSAL NUMBER 33 PROPOSED AMENDMENT Amend Section 1 toadd the following subsection: "Eighth: The right to individual privacy is recognized and shall not be infringed without the showing of a àompelling private or state interest." COMMISSION MEMBER SUPPORT: COMPILATION OF RESPONSESTO THE SURVEY BALLOT OF THE COMMISSION ON CONSTITUTIONAL REVIEW OF JULY 1987 Percentage of member responses favoring inclusion of this pro- 71¾ posal in thó final report of the Commission on Constitutional Review Percentage of member responses opposinginclusion of this pro- 19¾ posal in the final report of the Commission on Constitutional Review

Percentage of member responses indicating no opinion concern- 10¾ ing inclusion of this proposal in the final report of the Commis sion on Constitutional Review

Priority ranking of this amendmen; as determined from response 7 tothe survey ballot. This report contains seventy-seven amend ment proposals. Thete are only sixty-two possible rank positions, however, due to various proposals receiving identical priority in dex ratings and priority rankings. A ranking of "I" indicates first priority, least priority is indicated by a ranking of "62." Priority index of this amendment as determined from response 2.06 to the survey ballot. Index numbers approximating "1.00" in dicate high priority; index numbers approximating "5.00" in dicate least priority.

JUNE 1992 IT/ic Advocate 58 SUBCOMMITTEE ON BiLL OF RIGHTS/ELECTIONS AMENDMENT PROPOSAL NUMBER 34 PROPOSED AMENDMENT Amend Section 1 to add the following subsection: "Ninth: The right to equality under the law shall nor be denied ot abridged by the state or any persOn or private entity on account of race, color, religion, national origin, gender, age, or physical or mental han dicap,abseñt a compelling interest.,’ COMMISSION MEMBER SUPPORT: COMPILATION OF RESPONSES TO THE SURVEY BALLOT OF THE COMMISSION ON CONSTITUTIONAL REVIEW OF JULY 1987

Percentage of member responses favoring inclusion of this pro- 71¾ posal in the final report of the Commission on Constitutional Review

Percentage of member responses opposing inclusion of this pro- 19¾ posal in the final report of the Commission on Constitutional Review Percentage of member responses indicating no opinion concern- 10¾ ing inclusion of this proposal in the final report of the Commis sion on Constitutional Review

Priority ranking of this amendment as determined from response 5 to the survey ballot. This report contains seventy-seven amend ment proposals. There are only sixty-two possible rank positions, however,, due to various proposals receiving identical priority in dex ratings and priority rankings. A ranking of "I" indicates first priority, least priority is indicated by a ranking of "62." Priority index of this amendment as determined from response 2.00 to the survey ballot. Index numbers approximating "1.00" in dicate high priority; index numbers approximatIng "5.00" in dicate least priority.

JUNE1992 /TheAdvocate 59 SUBCOMMITTEE ON BILL OF RIGHTS/ELECTIONS

AMENDMENT PROPOSAL NUMBER 35 PROPOSED AMENDMENT Amend the Bill ofRights to add the following section: "Prosecution by Information. Offenses shall be prosecuted either by information after exammation and commitment by a judge, unless the a amination be waived by the accused with the consent of the court, or by indictment, with or without such examination and commitment. The for mation of the grAnd Jury and the powers and duties thereof shall be prescribed bylaw."

COMMISSION MEMBER SUPPORT: COMPILATION OF RESPONSES TO THE SURVEY BALLOT OF THE COMMISSION ON CONSTITUTIONAL REVIEW OF JULY 1987 Percentage of member responses favoring inclusion of this pro- 57¾ posal in the final report of the Commission on Constitutional Review

Percentage of member respOnses opposing inclusion of this pro- 5¾ posal in the final report of the Commission on Constitutional Review Percentage of member responses indicating no opinion concern- 38¾ iflg inclusion of this proposal in the final report of the Commis sion on Constitutional Review

Priority ranking of this amendment as determined from response 27 to the survey ballot.’ This report contains seventy-seven amend ment proposals: Thereare only sixty-two possible rank positions, however, due to. various piopolals receiving identical priority in dcx ratings and priority rankings. A ranking of "1" indicates first priority, least priority is indicated by a ranking of "62." Priority index of this amendment as determined from response 2.64 to the survey ballot. Index, numbers approximating "1.00" in diëate high priority; index numbers approximating "5.00" in dicate least priority.

JUNE1992 IT/ic Advocate 60 SUBCOMMITTEE ON BILL OF RIGHTS/ELECTiONS AMENDMENT PROPOSAL NUMBER 36 PROPOSED AMENDMENT Amend the Bill ofRights to add the following section: "Death Penalty. The penalty of death shall be imposed for inten tionalmurder." COMMISSION MEMBER SUPPORT: COMPILATION OF RESPONSES TO THE SURVEY BALLOT OF THE COMMISSION ON CONSTITUTIONAL REVIEW OF JULY 1987 Percentage of member responses favoring inclusion of this pro- 52¾ posal in the final report of the Commission on Constitutional Review

Percentage Of member responses opposing inclusion of this pro- 43¾ posal in the final report of the Commission on Constitutional Review

Percentage of member responses indicating no opinion concern- 5¾ ing inclusion of this proposal in the final report of the Commis sion on Constitutional Review Priority ranking of this amendment as determined from response 33 to the survey ballot. This report contains snenty-seven amend ment proposals. There are only sixty-two pOssible rank positions, however, due to various proposals receiving identical priority in dex ratings and priority rankings. A ranking of "3" indicates first priority, least priority is indicated by a ranking of "62." Priority index of this amendment as determined from response 2.75 to the survey ballot. Index numbers approximating "1.00" in *dicate high priority; index numbers approximating "5.00" in dicate least priority.

JUNE1992 IThe Advocate 61 SUBCOMMITTEE ON BILL OF RIGHTS/ELECTIONS AMENDMENT PROPOSAL NUMBER 37 PROPOSED AMENDMENT Amend Section 10 to read as follows: "The people shall be secure in their persons, houses, papers, and possessions from unreasonable search and seizure; and no warrant shall Issue to search any place, or seize any person or thing, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation. Evidence obtained in violation of this section shall not be admissible in any court against anyperson." COMMISSION MEMBER SUPPORT: COMPILATION OF RESPONSES TO THE SURVEY BALLOT OF THE COMMISSION ON CONSTITUTIONAL REVIEW OF JULY 1987

Percentage of member responses favoring inclusion of this pro- 67¾ posal in the final report of the Commission on Constitutional Review Percentage of member responses opposing inclusion of this pro- 33¾ posal in the final report of the Commission on Constitutional Review Percentage of member responses indicating no opinion concern ing inclusion .of this proposal in the final report of the Commis sion on Constitutional Review Priority ranking of this amendment as determined from response 26 to the Survey ballot. This report contains seventy-seven amend- merit proposals. There are only sixtytwo possible rank positions, however,, due to various proposals receiving identical priority in dex ratings and priority rankings. A ranking of "I" indicates first priority, least priority is indicated by a ranking of "62." Priority index of this amendment as determined from response 2.63 to the survey ballot. Index numbers approximating "1.00" in dicate high priority; index numbers approximating "5.00" in dicate least priority.

JUNE 1992 IT/ic Advocate 62 SUBCOMMITTEE ON BILL OF RIGHTS/ELECTIONS AMENDMENT PROPOSAL NUMBER 3.8 PROPOSED AMENDMENT

Amend Section 1 to refer to "Commonwealth" rather than "State." COMMISSION MEMBER SUPPORT: COMPILATION OF RESPONSES TO THE SURVEY BALLOT OF THE COMMISSION ON CONSTITUTIONAL REVIEW OF JULY 1987 Percentage of member responses favoring inclusion of this pro- 36¾ posal in the final report of the Commission on Constitutional Review Percentage of member responses opposing inclusion of this pro- 5¾ posal in the final report of the Commission on Constitutional Review

Percentage of member responses indicating no opinion concern ing inclusion of this proposal in the final report of the Commis sion on Constitutional Review

Priority ranking of this amendment as determined from response 62 to the survey ballot. This report contains seventy-seven amend ment proposals., There are Only sixty-two possible rank positions, however, clue to various proposals receiving identical priority in dex ratings and Priority rankings. A ranking of "I" indicates’ first priority, least priority is indiéated by a ranking of "62." Priority index of this amendment as determined from response 4.12 to the Survey ballot. index numbers approximating "1.00" in dicate high priority; index numbers approximating "5.00" in dicate least priority.

JUNE1992 IThe Advocate 63 SUBCOMMITTEE ON BILL OF RIGHTS/ELECTIONS AMENDMENT PROPOSAL NUMBER 39 PROPOSED AMENDMENT Amend the Bill of Rights. Sections 1-26, so ‘that gender references are neutral. COMMISSION MEMBER SUPPORT: COMPILATION OF RESPONSES TO THE SURVEY BALLOT OF THE COMMISSION ON’ CONSTITUTIONAL REVIEW OF JULY 1987 Percentage of member responses favoring inclusion of this pro- 71¾ posal in the final report of the Commission on Constitutional Review Percentage of member responses opposing inclusion of this pro- 10¾ posal in the final repOrt of t’he COmmission on Constitutional Review Percentage of member responses indicating no opinion concern- 19¾ ing inclusion of this proposal in thi final report of the Commis ion on Constitutional Review Priority ranking of this amendment as determined from response 54 to the survey ballot. This’ report contains seventy-seven amend ment prOposals. There are only sixty-twopossible rank positions, however, due to various proposals receiving identical priority in dex ratings and priority rankings. A ranking of "I" indicates first priority, least priority is indicated by a ranking of "62." Priority index of this amendmónt as determined from response 3.35 to, the survey ballot. Index numbers approximating "1.00" in dicate ‘high priority; index* numbers approximating "5.00" in dióate least priority.

JUNE 1992 IT/itAdvocate 64 SUBCOMMITTEE ON BILL OF RIGHTS/ELECTiONS

AMENDMENT PROPOSAL NUMBER 40 PROPOSED AMENDMENT

Amend the Bill ofRights to add the following section: "Material Witness. No petson who may be a material witness in a criminal proceeding may be imprisoned on that ground, but such person may be detained for a reasonable period oftime for questiOning." COMMISSION MEMBER SUPPORT: COMPILATION OF RESPONSES TO THE SURVEY BALLOT OF THE COMMISSION ON CONSTITUTIONAL REVIEW OF JULY 1987 Percentage of member responses favoring inclusion of this pro- 5707q posal in the final report of the Commission en Constitutional Review Percentage of member responses opposing inclusion of this pro- 14¾ posal in the final report of the Commission on Constitutional Review Percentage of member responses indicating no opinion concern- 29¾ ing inclusion of this proposal in the final report of the Commis sion on Constitutional Review Priority ranking of this amendment as determined from response 40 to the survey ballot. This report contains seventy-seven amend ment proposals. There’ are only sixty-two possible rank positions, however due to various proposals receiving identical priority in dex ratings and priority rankings. A ranking of "1" indicates first priority, least priority is indicated by a ranking of "62." Priority index of this amendment as aeteined from response 2.92 to the survey ballot. Index numbers approximating "1.00" in dicate high priority; index numbers approximating "5.00" in dicate least priority.

JUNE 1992 IT/ie Advocate 65 SUBCOMMITTEE ON BILL OF RIGHTS/ELECTIONS AMENDMENT PROPOSAL NUMBER 41 PROPOSED AMENDMENT Amend the Bill ofRights to add the following section: "Electronic Surveillance. Thepeople shall be secure in their persons, houses, papers and possessions from interception of telegraphic, telephonic, and other electronic’ means of communicAtion, and from in terception of oral and other communications by electric, electronic or mechanical means." COMMISSION MEMBER SUPPORT: COMPILATION OF RESPONSES TO THE SUkVEY BALLOT OF THE COMMISSION ON CONSTITUTIONAL REVIEW OF JULY 1987 Percentage of member responses favoring inclusion of this pro- 57’. posal in the final report of the Commission on Constitutional Review

Percentage of member responses opposing inclusion of this pro- 33¾ posal in the final report of the Commission on Constitutional Review

Percentage of member responses indicating no opinion concern- 10¾ inginclusion of,,this proposal in the final repOrt of the Commis sion on Constitutional Review

Priority ranking of this amendment as determined from response 32 to the survey ballot., This report contains sevçnty-seven amend ment proposals. There are only sixty-two possible rank positions, however, due to various proposals receiving identical priority in dex ratings and priority rankings. A ranking of "1" indicates first priority, least priority Is indicated by a ranking of "62." Priority index of this amendment as determined from response 2.73 to the survey ballot. Index numbers approximating "1.00" in dicate high priority; index numbers approximating "5.00" in dicate least priority.

JUNE 1992 IT/ieAdvocate 66 SUBCOMMITTEE ON BILL OF RIGHTS/ELECTIONS AMENDMENT PROPOSAL NUMBER 42 PROPOSED AMENDMENT Repeal Section 12, which cwrently reads as follows: Indictable offensenot to be prosecuted by information; exceptions. No person, for an indictable offenses shall be proceeded against ériminally by information, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger, or by leave of court fot oppression or misdemeanor in office. COMMISSION MEMBER SUPPORT: COMPILATION OF RESPONSES TO THE SURVEY BALLOT ‘OF THE COMMISSION ON CONSTITUTIONAL REViEW OF JULY 1987

Percentage of member responses , favoring inclusion of this pro- 67¾ posal in the final report of the Commission on Constitutional Review

Percentage of member responses opposing inclusion of this pro- 5¾ posal in the final report of the Commission on Constitutional Review

Percentage of member responses indicating no opinion concern- 28¾ ing inclusion of this pioposal in the final report of the Commis sion on Constitutional Review Priority ranking of this amendment as determined from response 42 to the survey ballot. This report contains seventy-seven amend malt proposals. There are only sixty-two possible rank positions, however, due to various proposals receiving identical priority in dcx ratings and priority rankings. A ranking of "1" indicates first priority, least priority is indicated by a ranking of "62." Priority index of this amendment as determined from response 3.00 to the survey ballot. Index numbers approximating "1.00" in dicate high priority; index numbers approximating "5.00" in dicate least priority.

JUNE 1992 IThe Advocate 67 li :1 HAPTER 4

Constitution ofthe ‘Ti nitedStates i4menthnent I

fFreedoin of speech and press. Congress suzal makg no law prohibiting thefree e&ercise thereofi orabricIging tliefreezIom ofspeech, or af the press.

Amendment n1

Rjghts cif accused In all criminalprosecutions, the accused slzat enjoy the rzqht to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.

Constitution of7Centucky Section 8

.fFreedom ofspeech and the the press. Printing presses shall be free to every person who undertaIçes to exjamine the proceedings ofthe syen.eralAssemblyor anybranch ofgovern ment, and no law shall ever be made to restrain the rjght thereof ¶Every person may freely andfully speak4 write and print on any subject, being responsible for the abuse of that liberty.

JUNE 1992 IThe Advocate 68 ______

"I’m writing a letter to the President:’ "That movie is WHEN’S PTd You have*the* right rated PC’ ‘Imoldenoughtovote.’ to remain silent." "HASTHE PAPER "THAT’S DISCRIMINATION!" COME "It’s unconstitutional’ "SHE’S A PUBLIC "I’ll say what ‘1 refuse to DEFENDER." I want to say" answer" "WE HAVE jELECTION "Are you going EVERY DAY YOU DAY to the meeting?" OFF." "Equal Opportunity Employer." USE THE !*@*#,! ‘Did you BILL OF RIGHTS "Do you have a sivn "P40 a the warrant?" petition?" TRESPASSINGI’ D , "Write your "Ican’t Congressman." believe IT’S A FREE I voted YOU DON’T EVEN I e "I’M foThim’ COUNTRY!’ "A man’s home is his castle:’ INNOCENT!" "He’s never stepping KNOW IT got "I bdught foot in my house!’ "she it for the took Ri c1es:’ "THROW I,, " "O.K. let’s see have jury some proof of rights THE your age?’ "That’s against the law. "THE AYES HAVE IT." Y0u can’t "Vote ‘YES’ on Election Day!" "What hold me1’ "You don’t have to take RASCALS "WHEN I GROW UP a Federal Case out of it!" flnie ‘BAILBONDU ANYTIMP I WANT TO " is church?" OUi"*"THAT’S ARt?" BE PRESIIJENT" MJ "I want a lawyer!" "You’ll have ‘Call out the take it your day "‘J to the in court:’ National Guard!"Sujwemecoortr For 200 years the Bill of Rights and subse- tend to take them for granted, which is unfortu quent amendments have secured our freedoms as nate because without them, you would not even Americans. In fact, these constitutional rights have have the freedom to read this ad, nor would we become such a part of our everyday life that we have the freedom to run it. THE CONSTITUTION THE WORDS WE LIVE BY. THE COMMISSION ON THE BICENTENNIAL OF THE UNITED STATES CONSTITUTION INVITES ALL AMERICANS TO CELEBRATE "THE BILL OF RIGHTS AND BEYOND" IN 1991. FOR MORE INFORMATION WRITE: THE CONSTITUTION, WASHINGTON. D.C. 2O6.3999.

JUNE 1992 The Advocate 69 THE FIRST AMENDMENT AND THE CRIMINAL JUSTICE SYSTEM

Roy Moore

Copyright 1991 Roy L. Moore. All rights recognizig a right of access inHouchins if approved by the defendant unless the reserved. v. KQED two years earlier. hi his con court strongly considered the public in curring opinion, Justice Blackmun stuck terest in open proceedings. Both justices Since the adoption of the Bill ofRights in to his view earlier in Gannett Co. v. De believed the First Amendment guaran 1791, the Sixth Amendment has Pasquale that the right to a public thai teed an open criminal trial in Richmond guaranteed, among other rights, the right could be found explicitly in the Sixth Newspapers. of a criminal defendant "to a speedy Amendment but that "the First Amend and public trial, by an impartial juiy of ment must provide some measure of The Court is not the only body ambiva the State and district wherein the tection for public access to the trial." lent about opening the judicial crime shall have been committed process to press and public scrutiny. The U.S. Supreme Court has wrestled for The lone dissenter, Justice William Lawyers, judges and the public seem more than two centuries with issues such Rehnquist, said he could find no split on the issue as well. Some judges as the criteria for art impartial jury’ and prohibition against closing a trial to the have little hesitation *in closing the meaning of "speedy," but the Court public and the press anywhere in the Con criminal thals and Fe-trial proceedings never directly acknowledged a stitution, including the First, Sixth, to thb public and the press, while Constitutional right of public access to Ninth, or any other Amendments, others take extraordinary measures to en judicial proceedings until 1980 when Justice Rehnquist would instead defer to sure public access while protecting the justices held 7-1 in Richmond News the states and to the people to make the rights of the defendant. First Amend papers v. Virginia2 that the First and 14th the judgment of whether trials should be ment attorneys generally favor open tri Amendments guarantee the press and the open. He made no reference to the als and open proceedings, while criminal public the right to attend criminal trials. meaning of "public trial" under the Sixth defense lawyers are sometimes more The right was not absolute, according to Amendment, although he had joined the comfortable with proceedings, the Court, but "taibsent an overriding majority in Gannett Co. v. DePasquale, especially in highly visible cases that are interest articulated in findings, the thaI of which held that "members of the public likely to attract media attention. a criminal case must be open to the pub have no constitutional right under the lic," Sixth and Fourteenth Amendments to at Why are courts so bothered by open pro tend criminal trials."7 ceedings? The most common fears are 1 One aspect of the decision that was trou a public trial can bias jurors and thus blesome for journalists was that, The Court tackled three more major cases preventa defendant from receiving a fair with six different opinions among the dealing with right of access to the judi trial, 2 the presence of the news media seven justices in the majority, there is cial process after RichmondNewspapers will seriously affect the courtroom de no clear indication whether this is a First v.Virginia, and in each casefound a Con corum and ultimately the judicial proc Amendment or a Sixth Amendment stitutional right, but continued to quibble ess, and 3 extensive publicity may ad right. Chief Justice Warren Burger was over the origins of the right, The result versely affect the defendant and other joined by Justices Byron White and was confusion that is unlikely to dissipate witnesses, including the victim. John Paul Stevens in the Court’s holding for some time. The determination of that "... the right to attend criminal trials whether the right arises from the Sixth Do public trials prevent jurors from ren is implicit in the guarantees of the First Amendment or the First Amendment dering an impartial verdict, and, if so, Amendment without the freedom to at- could prove very significant in the long would closing them ensure an unbiased -- ---tend-suclrthalsTwhich people have exer run. Four of the justices who decided decision? Some criminal trials attract so cised for centuries, important aspects of Gannett v. DePasquale still sit on the much pre-trial media attention that the speech and of the press could be eviscer court - Chief Justice Rehnquist and As courts auotmatically assume that extraor ated" Jciting Branzburg v. Hayes sociate Justices Stevens, White and dinary measures must be taken even dur 1972]. In separate opinions, Justices Blackinun. Justice Rehnquist found no ing voir dire. Typical examples are the Byron White, John Paul Stevens and Constitutional right of access in either William Kennedy Smith rape trial in Harry Blackmun each concurred withthe Gannett orRichmondNewspapers, while Palm Beach, Florida, and the Miami, decision but not fully with the reasoning Stevens found no Sixth Amendment right Florida, trial of former Panama leader, of the Court. Justice White criticized the in Gannett but appeared to recognize a Manuel Noriega, on drug trafficking Court for nothaving recognized this right First Amendment right in Richmond charges, in 1991. In both cases, thou under the Sixth Amendment one year Newspapers. Justices Blackmun and sands of news stories appeared about earlier jn Gannett Co. v. DePasquale White believed that the Sixth Amend each defendant, and hundreds of poten 1979, discussed shortly. Justice Ste ment applied through the 14th Amend tial jurors were questioned during voir vens characterized the case as a "water ment barred a state from closing the pre dire before a final panel was selected. shed case," but chided the Court for not trial suppression hearing in Gannett even Most individuals were dismissed as p0-

JUNE 1992 IThe Advocate 70 tential jurors because they indicated they flamboyant life-style and his earlier con which the trial occurred. had been seen and heard some of the viction for stealing the Star of India sap massive publicity and thus were presum phire prejudi9Q the jury. Murphy citeg The circumstances compelling the Su ably biased. Irvin v. Dowd, Rideau v. Louisiana,’ preme Court to overturn the swindling Estef v. Texas’6 and Sheppard v. Max conviction of the petitioner in Estes v. The principles laid down by the Court in well 7to support his contention that "per Texas 1965 involved more than Near v. Minnesota 1931 and Nebraska sons who have learned from news simply jury prejudice. The Court held Press Association v. Judge Stuart sources of. a defendant’s prior criminN that the 14th Amendment due process 1976, however, effectively restrict record are presumed to be prejudiced," rights of fmancier Billy Sol Estes had judges from exercising control over In each of these cases, the Supreme Court been violated primarily because of the pre-trial and during-thal publicity, al reversed a criminal conviction in state publicity associated with the pretrial though they can certainly control what court "obtained in a trial atmosphere that hearing, which had been carried live on takes place in the courtroom. InNear, the had be9 utterly corrupted by press cov both television and radio. Some portioq Court said that the government could im erage." of the trial were also broadcast, pose prior restraint against the press only and news photography was permitted in exceptional circumstances such as ob In Irvin v. Dowd 1961, the Court held throughout the trial. The Court was scenepublications or a potential violation unanimously that "Mad Dog Irvin" clearly unhappy withthe massive pretrial of national security, while in Nebraska as he was known in the press had been and during-trial publicity, but its Press Association, the Court unani denied 14th Amendment due process and greatest concern was the presence of mously held that a state thaI court judge’s thus was entitled to anew trial. The Court cameras at the two-day pretrial hearing, restrictive order on the news media was pointed to the fact that eight of which included at least 12 camerapersons unconstitutional because the judge had the 12 jurors in the case had indicated continually snapping still pictures failed to exhaust other measures for en during voir dire that they thought he or recording motion pictures, cables and suring a fair thaI short of prior restraint. was guilty of the murder for which he wires "snaked across the courtroom "Wereaffirm that the guarantees of free was being tried. All eight of them said floor," three microphones on the judge’s dom of expression are not an absolute they were familiar with the facts and cir bench and others aimed at the jury box prohibition under all circumstances, but cumstances, including that Irvin had and the attorney’s table. By the time of the barriers to prior restraintremain high confessed to six other murders. They had the trial, the judge had imposed and the presuition against its use con acquired this information from the rather severe restriction on press cover tinues intact." massive press coverage the story re age, and the thaI was moved about 500 ceived, but all 12 told the judge that they miles away. The Supreme Court did hint In a recent law review article entitled could still be impartial and fair. As the that cameras would return someday to the "Who is an Impartial Juror in an Court noted: courtrooms: Age of Mass Media?," Newton Minow and Fred Cate conclude: No doubt each juror was sincere It is said that the ever-advancing tech when he said that he would be fair niques of public communication and To think that jurors wholly unac and impartial to petitioner [Irvin],but the adjustment of the public to its pres quainted with the facts of a notorious the psychological impact requiring ence may bring about a change in the case can be impaneled today is to such a declaration before one’s fellows effect of telecasting upon the fairness dream. Anyone meeting that is often its father. Where so many, so of criminal trials. But we are not deal standard of ignorance should be sus many times, admitted prejudice, such ing here with future developments in pect. The search for a jury is a a statement of impartiality can be the field of electronics. Our judgment chimera. It is also unnecessary. given little weight. As one of the jurors cannot be rested on the hypothesis of Knowledgeable jurors today, like 800 put it, ‘You can’t forgetwhat you hear tomorrow but must take the facts as years ago, can fonn an impartial jury. and see.’ With his life at stake, it is not they arepresented today? In fact, the very diversity of requiring too much that petitioner be views and experiences that they pos thed in an atmosphere undisturbed that The facts indeed did change as the tech sess is the best guarantee of an so huge a wave of public passion and nology changed, leading 4he court impartial juiy.t’ by a jury other than one in which two- to rule in Chandler v. Floridt’ 16 years thirds of the members admit, before later that a state could permit broadcast The authors note that in 12th Century hearing any testimony, to possessin;8 and still photography coverage of crimi England where the jury system was belief in his guilt [citations omitted]. nal proceedings because camerasand mi invented an individual had to be familiar crophones in the courtroom were no with the parties as well as the circum In Rideau v. Louisiana 1963, the Court longer an inherent violation of a defen stances in the case before hwas eligible. reversed the death penalty of Wilbert dant’s 14th Amendment rights, contrary Strangers could not serve,t Rideau, convictedof armed robbery, kid to the holding in Estes v. Texas. The napping and murder. The Court held that majority opinion inEstes cited four major In an indirect way, the U.S. Supreme his right to due process had been violated reasons for banning cameras from the Court has agreed with the premise because the state trial court refused to courtroom - 1 the negative impact on that knowledgeable jurors can be impar grant a change of venue even though jurors, especially in biasing the jury and tial. In Murphy v. Florida 1975,’ most people in Calcasieu Parish, includ in distracting its members, 2 impair the Court held that Jack Roland Murphy, ing the jurors, had seen a film broadcast ment of the quality of the testimony of known as "Murph the Surf," was not three times on television in which the witnesses the idea that witnesses may denied a fair trial even though members defendant confessed, without benefit of alter their testimony when cameras and of the jury that convicted him of the an attorney, to the sheriff that he had mikes are present, 3 interference with 1968 robbery of a Miami home had committed the alleged crimes. The Court the judge in doing her/his job, and 4 learned of the defendant’s prior felony was concerned that threemembers of the potential negative impact on the defen conviction and other facts from news sto jury said during voir dire that they had dant, includingharassment. As the Court ries. Murphy unsuccessfully argued seen the televised confession at least noted: that the extensivemedia coverage he it once. Further, two members of the jury ceived primarily because of his were deputy sheriffs of the parish in Trial by television is .. foreign to our

JUNE 1992 /TheAdvocate 7] system... [T]elecasting may also de closure withno objection from the prose The publicity surrounding the case and prive an accused of effective counsel. cution. The defendant’s first conviction the trial was unbelievable and on The distractions, intnzsions into confi of second degree murder was reversed par with that in the 1934 trial of Bruno dential attorney-client relationships because improper evidence was intro Hauptmann in the kidnap-murder of the and the temptation offered by televi duced at trial, while the second and third 19-month-old son of famed aviator, sion to play to the public office might thals ended in mistrials. Since the defen Charles Lindberg. The indiscretions of often have a direct effect not only upon dant asked that the trial be closed, he the press in that casç led the American the Iayen, but the judge, the jw2 and effectively waived his right to a public Bar Association tl*ee years later to the witnesses [citation omitted]. trial, Thus a First Amendment rationale adopt Canon 35 that effectively forbade was necessary if the trial were to remain broadcast coverage and still photos in With nearly all states and even the fed open. One of the more puzzling aspects the courtroom for more than 4 decades. eral courts now permitting television and of the decision is that the majority opin The casemustbereadinfulltobeappre radio coverage in the courtroom with ion written by then-Chief Justice Warren ciated, but a few examples can provide a only limited restrictions, those words Burger felt it was "not crucial" to char sense of why the Court denounced the seem rather hollow, but the technology acterize the decisioti as "right of "carnival atmosphere at thaI." The head and public attitudes,bave changed con access"or a "right to gather information." lines, stories and editorials in the Cleve siderably. When the cable network, The Court did note that the "explicit, land newspapers were relentless and Court TV, debuted in mid-1991, there guaranteed rights to speak and to publish merciless in their accusations against the were no outcries of sensationalism nor concerning what takes place at a trial defendant.. Some typical examples complaints about lack of due process. would lose much meaning if access to among the dozens cited by the Court: 1ndee the network had a enormous va observe the trial coulcas it was here, be riety of civil and criminal trials from foreclosed arbitrarily. 1. At the coroner’s request before the which to choose to fill its 24-hour pro trial, Sheppard re-enacted the grarnnñng. Although it was technically not an ac tragedy at his home, but he had to wait cess 24ase, Sheppard v. Maxwell outside for the coroner to arrive It is rather ironic that Chandler v. Flor 1956 was a watershed decision in- since the house was placed in "pro ida, which recognized no Constitutional valving the 14th Amendment rights of tective custody" until after the right of access but merely held that the defendants, especially in highly publi trial. Since news reporters had appar Cons Wution does not bar states from al cized cases. It also played a major ently been invited on the tour by lowing radio, television and photo role in a movement by lower courts away the coroner, they reported his perform waihic coverage of criminal proceed from openness that began in the early ance in detail, complete with ings, has probably had a greater impact 1990s. Indeed, the Court’s decision photographs. on opening up the judicial process than served as a lightning rod for many state Richmond Newspapers v. Virginia, courts to close trials even though the jus 2. When the defendant refused a lie which did indeed recognize a Constitu tices clearly did notintend to senda mes detector test, front-page newspaper tional right ofaccess to criminal thals by sage that press and public access should headlines screamed "Doctor Balks at the press and the public. Are there situ be restricted beyond the suggestions Lie Test; Retells Story" and "Loved ations in which criminal proceedings, in- made for preventing a crowded court My Wife, She Loved Me,’ Sheppard eluding trials, can be closed without vio room. Tells News Reporter." lating the First Amendment? Richmond Newspapers v. Virginia provides at least The circumstances in the case are particu 3. Later, front-page editorials claimed a partial answer. According to the Court, larly important in understanding someone was "getting away with mur the trial of a criminal case must be open the Court’s 8-1 decision. Samuel H. der" and called on thecoroner to do an to the public, "[absent an overridi2ig in Sheppard, a prominent Ohio osteopath inquest -. "Why No Inquest? Do It terest articulated in findings." The was tried and convicted by a jury of sec Now, Dr. Gerber." When the hearing Court, however, took no pains to explain ond degree murder after his wife, Mar was conducted, it took place in a local "overriding interest," butdid distinguish ilyn, was bludgeoned to death in their school gymnasium, complete with live the case from Gannett v. DePasquale by Bay Village home in suburban Cleve broadcast microphones, a swarm of noting that "both the majority [which up land. The Supreme Court’s opinion de photographers and reporters and sev held the closure of a criminal pretrial scribes the case in considerable detail, but eral hundred spectators to witness hearing as Constitutional].., and dissent some highlights bear mentioning. Dr. Sheppard being questioned for five and about actions on the ing opinions ... agreed that open thals Sheppard was a suspect in the murder a half hours his were .nart of the common law tradi from the beginning, especiallybecause of night of the murder, an illicit affair and tion.Th Unfortunately, the justices did contradictory information he and other his married life. His attorneys were pre not overrule Gannett v. DePasquale, witnesses provided about the circum sent but were not allowed to participate. which led Justice ByTon White to argue stances in the matter. He claimed, for inJil&concuiring-opinicn in Richmond example, that he had fallen asleep ona 4. Later stories and editorials focused Newspapers v. Virginia that the latter couch the night his wife was murdered in on evidence that was never introduced case "would have been unnecessary had her bedroom, but that he had heard her at trial and on his alleged extramarital Gannett ... construed the Sixth Amend cry out in the early morning. When he ran affairs with numerous women, even ment to forbid the public from excluding upstairs to herbedroom, he saw a "form" though theevidence at trial included an the public from criminal proceedings ex standing over her bed and was then affair with only one woman, Susan cept in2qarrowly defined circum knocked unconscious when he struggled Hayes, who was the subject of dozens stances." with the "font" When he regained con of news stories. sciousness, he checked his wife and be Richmond Newspapers was a particu lieved she was dead after he could not get 5. Sheppard was not formally charged larly appropriate case for testing this a pulse. He then checked on his son, until more than a month after the implicit right of access in the Constitu found him unharmed and then murder, and during that time the edito tion because it involved a defendant chased the "form" out the door onto the rials and headlines ranged from who had been tried three times before lake shores where he again lost con "Why Isn’t Sam Sheppard In Jail?" to and who had specifically requested sciousness. "New Murder Evidence Is Found,

JUNE 1992 [TheAdvocate 72 Police Say" and "Dr. Sam Faces Quiz newsmen in the courtroom. general public. It is quite another thing to At Jail On Marilyn’s Fear Of Him." suggest that the Constitution imposes Secondly, the court should have insu upon government the affirmative duty to 6. The trial occurred two weeks before lated the witnesses. All of the make available to journalists sources of the November general election in newspapers and radio stations appar infomiatiion not availabl to members which the chief prosecutor was a can ently interviewed prospective of the public generally?" The Court didate for Common Pleas Judge and the witnesses at will, and in many instances accepted the state’s rationale that media trial judge was a candidate to succeed disclosed their testimony interviews can turn certain inmates into himself. All three Cleveland celebrities and thus create disciplinary newspapers published the names and Thirdly, the judge should have made problems for these and other prisoners. addresses of prospective jurors and some effort to control the release of during the trial thejurors became media leads, information, and gossip to the In Saxbe, issued on the same thy as Pell, celebrities themselves. During press by police officers, witnesses, and the Court upheld a federal rule similar to the trial, which was held in a small the counsel for both sides. Much of the that of California that prohibited per courtroom 26x48 feet, 20 newspaper information was inaccurate, leadingo sonal interviews by journalists with in and wire service reporters were seated groundless rumors and confusion.... dividually designated federal inmates in within three feet of the jury medium- and maximum-security pris box. A local radio station was even The Court also suggested other reme ons. The justices saw no major differ allowed to broadcast from a room dies, including 1 continuance or ences between the two regulations and next door to where the jurors recessed postponing the case until prejudicial pub noted that the federal rule "does not place and later deliberated in the licity subsides, 2 transferring to the press in any less advantageous posi 6 case. Each day, witnesses, the attor another county not permeated by the tion than the public generally." The neys and the jurors were photographed publicity, 3 sequestration of the jury Washington Post had filed suit after it as they entered and left the courtroom, to keep its members from being exposed was denied access to prisoners who had and while photos were not permitted to prejudicial publicity, and 4 ordering allegedly been punished for their in during the trial itself, they were permit a new trial if publicity threatens a defen volvement in strike negotiations at two ted during therecesses. Infact,pictures dant’s due process rights after the trial has federal facilities. In its reasoning, the of thejury appeared more than 40 times begun. It is significant that the Court did Court relied l1avily upon Branzburg V. in the newspapers. not cite restrictive orders "gag" orders Hayes 1972, which held 5-4 that the on the press as a judicial remedy but First Amendment grants no special 7. The jurors were never sequestered instead favored restricting the parties, privileges to journalists against reveal during the trial and were allowed witnesses and attorneys. Unfortunately, ing confidential sources or confidential to watch, hear and read all of the mas many courts interpreted the Sheppard information to grand juries. sive publicity during the trial holding as a license to impose restrictive that even included a national broad orders on the press anyway, prodding In a decision in 1978 that has had very cast by the famous Walter Winchell in the Court to eventually rule out such cen limited impact on the press because of its which he asserted that a woman under sorship under most circumstances in a rather unusual circumstances, the Court arrest for robbery in New York City series of rulings that culminated in the ruled 5-4 that no First Amendment rights said she was Sam Sheppard’s mistress decision in Nebraska Press Association were violated when the press was denied and had borne his child. The judge v. Stuart in 1976, in which the Court held permission to copy, broadcast and sell to merely politely "admonished" the ju that restrictive orders against the press the public recordings of White House rors not to allow such stories to are "presumptively unconstitutional" and conversations that were played during affect theirjudgment. cannot be issued except in rare circum one of the Watergate trials. Richard stances and then only after other meas Nixon v. Warner Commwiicatiod was As the Court noted, "bedlam reigned at ures less restrictive of the First Amend unusual in that Warner was requesting the courthouse during the trial and news ment such as those just discussed are copies of tapes that had already been men took over practically the entire exhausted. played at trial but were in the custody of courtroom, hounding most of the the Administrator of General Services participants in trial, Newspapers the Su under authority granted by the Presiden 1 the especially Shep Until Richmond pard." As a result, Sheppard was preme Court appeared to be moving to- tial Recordings Act approved by Con denied a fair trial in violation of his 14th ward severely restricting press access to gress.Pell and Saxbewere basically reaf Amendment due process rights, accord the judicial process. While upholding firmed four years later in a plurali ing to the Court, which ordered a new closure of pretrial hearings, albeit in a 5-4 opinion in Houchins v. KQED 1978 trial. At the second trial, 12 years after the call, Gannett v. DePasquale represented in which the Court held that a first, the physician was acquitted. In only one section of the jg picture. In broadcaster’s First and 14th Amendment spite of the fact that Dr. Sheppard had Pell v. Procunier 1974 and William rights were not violated when the been the subject of highly prejudicial, B. Sax/j v. The Washington Post Co. station was denied access to the portion intense publicity, the Court recom 1974, the Courtdecided 5-4 that jour of a county jail where a suicide had mended remedies short ofprior restraint: nalists have no Constitutional right of occurred. According to the Court, "Nei access to prisons or their inmates beyond ther the First Amendment nor Fourteenth Bearing in mind the massive pretrial those enjoyed by the public. Fell upheld Amendment mandates a right of access publicity, the judge should have a California Department of Corrections to government information or sources of adopted stricter rules governg the use regulation barring the news media from information within the government’s of the courtroom by newsmen interviewing "specific individual in control. Under our holdings in [Fell and The number of reporters in the court mates." Four prisoners and three jour Saibe], until the political branches de room itself could have been limited at nalists had challenged the rule as a vio cree otherwise, as they are free to do, the the first sign that their presence would lation of their First and 14th Amendment media has [sic] no special right of access disrupt the trial. They certainly should rights of free speech. According to the to the AlmediaCountyJail [thefacility m not have been placed inside the bar. Court, "It is one thing to say that a jour question] different from or greater th Furthermore, the judge should have nalist is free to seek out sources of infor that accorded the public generally.’ more closely regulated the conduct of mation not available to members of the The station could use other sources, the

JUNE 1992 IThe Advocate 73 ----JusUcrPowell-took

Court noted, such as imnate letters, for 7-0 that a Virginia statute subjecting in already allowed reporters and other mer inmates, public officials and pris dividuals, including newspapers, to members of the public to attend a hearing oner’s attorneys to gain the infonnation criminal sanctions for disclosing infor in the case in which the information was it sought about conditions at the facility. mation regarding proceedings before a disclosed. Once truthful information is state judicial review commission was a "publicly revealed" or "in the public do As if to illustrate this point but in a dif violation of the First Amendment. The main," it cannotbe banned, according to ferent setting, exactly one year later the case arose whenthe Virginian Pilot pub the Court. In 1982 the U.S. Supreme Court unanimously struck down as un lished an article accurately reporting de Court issued the first of three rulings that constitutional a statute that tails of an investigation of a state judge appeared to significantly broaden the provided criminal penalties for publica by the Virginia Judicial Inquiry and Re holding in Richmond Newspapers 1980 tion, without the written permission of view Commission. One month later, a that criminal trials were under the the juvenile court, of truthful informa state grand jury indicted the company Constitution presumptively open to the tion that had been lawfully acquired that owned the newspaper for violating press and the public. While the first concerning the identity of a juvenile of the statute by "unlawfully divulg[ingl the decision, Globe Newspaper Co. v.#or fender. In Robert K, S,jjzh v;DailyMail identification of a Judge of a Court not of folk County Superior Court 1982 did Publishing Co. 1979, thejustices said record, which said Judge was the subject not deal directly withthe scope of Rich that the assertedstale interest of insuring of an investigation and hearing" by the mond Newspapers, it still paved the way the anonymity of juveniles involved in commission. In a bench trial, Landmark for the two subsequent cases that con juvenile court proceedings was not suf was fmed $500 and ordered to pay court fronted this issue. In Globe Newspaper, ficient to override the First Amendment’s costs. The company appealed and the the Court in a 6-3 opinion struck down restrictions against prior restraint. The Supreme Court held that the First as unconstitutional a Massachusetts Charleston West Virginia Daily Mail Amendment does not allow "the criminal statute that the state Supreme Judicial and the Charleston Gazette published the punishment of third persons who are Court construed to require judges to ex name of a 14-year-old junior high stu strangers to the inquiry, including news clude the press and the public in trials dentwho had beencharged withshooting media, for divulging or publishing truth for certain sexual offenses involving a a 15-year-old classmate to death at ful information regarding confidential victim under the age of 18 during the school. Reporters and photographers proceedings" of the Jwicial Inquiry and time the victim is testifying. The key first heard about the shooting on a police Review Commission. The Court noted factor in the case was mandatory closure radio and then were given the alleged that the issue was narrow since the case - the judge had no discretion. Liber assailant’s name by several eyewit was not concerned with application of the ally quoting its decision in Richmond nesses, the police and an assistant prose statute to someone who obtained the Newspapers, the Court rejected the cutor.After the name and photo of the information illegally and then divulged state’s contentions that the statute was teenage defendant appeared in the pa it nor with the authority to keep such necessary to protect "minor victims of pers, a grand jury indicted both publica a commission’s proceedings confiden sex crimes from further trauma and em tions for violating the state statute, al tial. But it was, nevertheless, an impor barrassment" and to encourage "such though no indictments were issued tant victory for newsgathering because victims to come forward and testify in a against three local radio stations who it reinforced the principle that truthful truthful and credible manner." Accord broadcast the name. The statute applied information legally obtained enjoys ing to the majority opinion: only to newspapers, not to the electronic First Amendment protection even or other media, a deficiency duly noted when such information includes details Although the right of access to crimi by the Court in its decision. The holding of closed judicial proceedings. This nal trials is of a constitutional stature, in the case was narrow, as then-Chief protection is not absolute, of course, as it is not absolute. But the circumstances Justice Warren Burger indicated, be the Court noted in both Landmark and under which the press and the public cause "[t]here is no issue before us of Smith, but the state has a heavy burden can be barred from a criminal unlawful press access to confidential ju in demonstrating that its interests trial are limited;, the State’s justifica dicial proceedings [citations omitted]; outweighthose of the First Amendment. tion in denying access must be a thereis no issue here of pyacy orpreju While admitting in Landmark that weighty one. Where, as in the present dicial pre-trial publicity.’ Indeed, Jus premature disclosure of the commis case, the State attempts to deny the right tice Rehnquist, while concurring in the sion’s proceedings could pose some risk of access in order to inhibit the disclo judgment of the Court, noted,"... I think of injury to the judge, to the judicial sure of sensitive information, it that a generally effectiveban on publica system or to the operation of the com must be shown that the denial is neces tion that applied to all forms of mass mission itself, the Court said "much of sitated by a compelling governmental communication, electronic and print ms the risk can be eliminated through careful interest, and is nrowly tailored to dia alike, would be constitutional.’ internal procedures to protect the con serve that interest. The Court’s opinion, representing the fiden1j1ity of Commission proceed other seven justices voting in the case ings.’ - The justices agreed that the first asserted no part in the con state interest was compelling but that sideration or decision of the case., In Cox Broadcasting, the U.S. Supreme mandatory closure was not justified held that a state statute punishing the Court declared a Georgia statute since "the circumstances of a particular publication of the name of a juvenile unconstitutional that made made the case may affect the significance of the defendant would never serve a "state in press criminally and civilly liable for interest. A trial court can determine on terest of the highest order," as required publishing the name of a rape victim a case-by-case basis whether closure is to justify prior restraint. The majority even when such inforrnatij was ob necessary to prtect the welfare of a opinion cited, among other decisions, tained from public records. Finally, minor victim." The Supreme Court Landmark Cojpmunkazions Inc. v. Vir the Court held in Oklahoma Publishing was not convinced at all on the second ginia 1978, Cg Broadcasting Corp. Co.that a state court injunction barring asserted interest since the press and the v. Cohn 1975, and Oklahoma Pub the press from publishing the identity public are allowed to see the transcript lishin Co. v. District Court or photograph of an 11-year-old boy on and to talk withcourt personnel and other 1977. thai in juvenile cou was unconstitu individuals and thus ascertain the sub tional prior restraint. The Court struck stance of the victim’s testimony and In Landmark, the Supreme Court ruled down the judge’s oider because he had even his or her identity. Thus the Court

JUNE 1992 IThe Advocate 74 left the door open for closure on a case- reversed the trial court decision. The ROY MOORE by-case basis, while clearly prohibit U.S. Supreme Court reversed, holding Director of Graduate Studies ing mandatory closure as unconstitu that "California preliminary hearings University of Kentucky tional prior restraint. are sufficiently like a trial" to warrant a Lexington, KY 40507 First Amendment right of access unless 606 257-3814 Press Enterprise I 9.984t and Press the state can demonstrate an overriding Enterprise II 1986, as they have be interest sufficient to overcome the pre Footnotes come known, opened up voir dire and sumption of openness. preliminary hearings, at least as 1 See, for example, Reynolds v. United Stifles, are 98 U.S. 145, in whith the Court, in affirming they conducted in California, re SUMMARY AM CONCLUSIONS the constitutionality of afederal lawmaking big spectively, to the press and the public. amy a crime in the terntones, rejected a mo Press Enterprise! is particularly signifi Since Press Enterprise II the U.S. Su tion for a new trial on the ground that ma! judge cant because the Court for had allowed an individual serve on the jusy the first preme Court has not considered who, it was asserted "believed’ he had formed time held that the jury selection process whether other portions of the criminal an opinion which he had never expressed, and ispartofthecriminalthalitselfand thus judicial process, including preliminary which he did not think would influence his ver presumptively open under the First hearings in states that do not follow the dict on hearing the testimony." 14th and Amendments. The unanimous California model, fall under the 2 Richmond Newspapers, inc. v. Virginia 448 decision reiterated that the "presump holding in Richmond Newspapers. The U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 913, 6 tion of openness may be overcome composition of the Court has changed Med.L.Rptr. 1833 1980. only by an overriding interest based substantially since 1986 with William H. Paul M. Branthurg v. John P. Hayes, In on findings that closure is essential to Rehnquist replacing Warren Burger as the Matter ci Paul Pappas, and U.S. v. Earl preserve higher values and inarrowly Chief Justice and Associate Justices Caldwell 408 U.S. 665, 92 S.Ct. 2646, 33 tailored to serve that interest." In Press William J. Brennan, Jr., Thurgood Mar L.Ed.2d 26, I Med.L.Rptr. 2617. Enterprise I, the newspaper was denied shall, and Lewis F. Powell, replaced by Gannett Co., Inc. v. Daniel A. DePasQuale, accesstomostof the voir dire inatrial David Souter, Antonin Scalia, Anthony 443 U.S. 368,99 SQ. 2898, 61 L.Ed.2d 608,5 for the rape and murder of a teenage girl. Kennedy and Clarence Thomas, but it Med.L.Rptr. 1337 1979. The judge allowed the press to attend appears likely that the Court will, if Thomas L. Houchins, Sheriff ofthe Coun the "general voir dire" but closed the given the opportunity, continue to ofAla,neda, Ca/if, v. KOED, Inc., 438 U.S. cMirtroom when the attorneys ques broaden, albeit in narrow increments, 9’S S.C. 2588, 57 L.E.2d 553, 3 Med.L.Rptr. tioned individual jurors. In all, only three the scope of the limited First Amendment 2521 1978. days of the six weeks of voir dire were right of access to the criminal judicial 6 Gannett v, DePasquale. open, and the judge refused to allow a process. The major question, however, is transcript of the process to be released whether a mority of the justices will " Id. to the public. The jury selection recognize a constitutional right of the process could under some circum press and the public to attend civil trials J.M. Near i’. Minnesota, 283 U.S. 697,51 S.Ct. 625, 75 L.Ed. 1357, 1 Med.L.Rptr. 1001 stances invoke a compelling govern and related proceedings. Such a move 1931 ment interest, but no such interest had would be a bold and unprecedented step been demonstrated in this case, according toward truly opening the judicial system Nebraska Press Association v. Judge Hugh to Court. Stuart, 427 U.S. 539,96 S.Ct. 2791,49 L.Ed.2d the An example cited by the to the public, which it was designed to 683, 1 Med.L.Rptr. 1059 1976. justices of such a justified closure serve in the first place. Most civil nials might be to protect an individuaPs pri are now routinely open in state and fed ° Id. vacy when a prospective juror had eral courts, although not necessarily to privately told the judge that she or electronic media coverage, although Minow and Cates, Who Is an lmQartiat Juror a in an Age of Mass Media?, 40 AM. U. L. REv. member of her family had beenraped but even the federal courts are now pennit 631 l9l. had not prosecuted the offender because ting such access on an experimental basis of the trauma and embarrassment from for now. The U.S. Supreme Court has 12 Id. disclosure. always opened its formal proceedings, ‘ Murphy v. Florida, 421 U.S. 794, 95 S.Ct. although not its deliberations, to the pub 2031, 44 L.Fd.2d 589, 1 Med.L.Rptr. Finally, two years later in Press Enter lic, including oral arguments and the 1232 1975. prise II, the Supreme Court held 7-2 that reading of decisions, but the justices Irvin v. Dowd, 366 Us. 717,81 S.C. 1639, the press and the public enjoyed a lim have thus far banned cameras in the 6 L.Ed.2d 751, 1 Med.L.Rptr. 11781961 ited First Amendment right of access in courtroom itself, except for ceremonial criminal cases to preliminary hearings. occasions. Rideau v. Louisiana 373 U.S. 723, 83 The holding was quite narrow because S.C. 1417 10 L.Ed.2d 663, I the Court made emphasized that it ap As the Court has indicated in each of its Med.L.Rptr. l63. plied only to such hearings "as they are decisions dealing with access to the judi 16 Estee v. Texas 381 U.S. 532,85 SQ. 1628, conducted in California" where cial process, the right of access is not 14 L.Ed.2d, I MeA.L.Rptr. 1187 1965. "Ibjecause of its extensive scope, the absolute but the burden on the state to Sheppard v. Maxwell, 384 U.S. 333, 86 preliminary hearing is often the mo justify closure must necessarily be heavy. S.Ct. 1507, 16 L.Ed.2d 600, important in the criminal proceeding." The trials of Dr. Sam Sheppard and Med.L.Rptr. 12201966. The case began when the newspaper Bruno Hauptmann were aberrations and was denied access to a 41-day prelimi should be viewed as such by the courts. IS Murphy ii. Florida. nary hearing for a nurse charged in the Openness clearly promotes fairness and 19 Id. murder of 12 patients. The defendant justice because it subjects the judicial requested closure, and the magistrate in system to press and public scrutiny, Irvin v. Dowd. the case not only granted the motion but which is essential in an age in which the also sealed the record. The prosecution public appears to have lost some of its 21 While the judge banned liye broadcasting dunng most of the tnal, the opening and dosing moved to have the transcript released faith in the process, thanks to revelations arguments ci the prosecutor, the return of the and the trial court agreed to do so when that have brought the demise of several jury’s verdict and the receipt of the verdict by the judge were broadcast live. Other portions of the defendant waived the right to a jury state and federal court judges. the trial were recaTded by a camera behtnd trial, but the California Supreme Court a camouflaged booth and broadcast later as

,JUNE 1992 IThe Advocate 75 clips during the tocal newscasts. News photog- Branzburg v. Hayes. Superior Court, 457 U.S. 596, 102 S.C. 2613, rathers were also restricted to the 73 L,ECL2d 248, 8 Med.L.Rptt. 1689 1982. Richard Nixon v. Warner Communications, Estes v. Texas. 435 U.S. 589 98 S.C. 1306, 55 L.Ed.2d 570, 3 52 23 Med.L.Rptr. 074 1978. Noel Chandler and Robert Granter v. Flor id. ida 449 U.S. 560, 101 5.0. 802, L.Ed.2d Thomas L. Houchinsv. KQED. 438 U.S. I 74d,7Med.L.Rptr. 1041 1981. 98 S.Ct. 2588 57 L. d.2d 553, s Press Enterprise Co. v. Riverside County Med.L.Rptr. 2521 ‘1977. Superior Court f Press Enterprise 1", 464 Estes v. Texas. U. . 501. 104 So. 819, 78 L.Ed.2d 29, 10 ° is Med.L.Rptr. 1161 1984. Richmond Newspapers, Inc. v. Virginia. 41 Robert K. Smith v. Daily Mail Pub!ishg Press Enterprise Co. v. Riverside County Id. Co. 443 U.S. 97 99 S.C. ,61 L.Ed.2d 3 Superior Court ç’Ptess Enterprise II" 47 5 ?Aed.L.Rpir. th05 1979. U. . 1 106 S.Ct. 2735, 92 L.Ed.2d 1, 13 V Id. Med.L.kptr. 1001 1986. 42 Id. Id. I Press erprise I. Id. . Sheppard p. Marvel!. Press Enterprise 11. " Landmark Communications, Inc. p. Corn ° The old network TV series The Fugitive monwea1th Vir inia 435 U.S. 829 98 S.D. çstarrinthe late David Jansen, which still lives 1535,56 L. .74 f, 3 ?led.L.Rp1r. 213 1978. in syndication on the Ads andEntertainment Cable Network was loosely based on the Shep- Ccx Broadcast’ Corp. et al. p. Martin ‘. Cohe 420 U.S. 44%5 S. . 1029,43 L.Ed.2d 328,1 Med.L.Rptr. 18191975. 31 Sheppard p. Maxwell. Oklahoma Publishing Co. v. District Court 32 Id. in and for Oklahoma Coun% 430 U.S. 308,97 S.C. 1 5,51 L.Ed.2d 355, 1456 Pd! p. Procunier, 417 U.s. 817, 94 5.0. 1977. 2800. 41 LEd.24 4951974. Landmark Communications v. Virginia. William B. Saxbe v. The Washingtn Post Co. 417U.S.843,94S.Ct.2811,41L. 2d514 19t4. a Cox Broadcasting v. Cohn. Pell v. Procunier. 50 Oklahoma Publishing p. District Court. William B. Saxbe v. The WashingtonPost Co. SI Globe Newspaper Co. p. Norfolk County

AF1.ER. ‘Vt’ Eltsn t;t 1W.

* e’

Reprinted by Pennission.

JUNE 1992 ITS Advocate 76 HAPTER S

Constitution off/CentucIy Section 11

Qiglits of accused in criminal prosecution. In all criminal prosecutions the aecusedhas the nqht to be heardby himselfandcounseQ to demand the nature an cause of the accusation against him...

JUNE 1992/TheAdvocate 77 These people believed in due process,

F -

.3 U11bO12

But their government had a much different idea of process!

In the summer of 1944, at Birkenau, deportees from Hungary arrived in Auschwitz. The railways would bring the trains to the very gates of the gas-chambers, only a few yards walk away. Selections were made with each arriving train from Hungary, and some men and women from each train were sent to the barracks, and others met their death.

The United States Constitution clearly eliminates any of these atrocities from ever happening in this country by the fourteenth amendment. It clearly states that no state shall ".. deprive any per son of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws? This also prevents prejudice against any race, creed, or nationality, and gives all walks of life the freedom of choice.

Tbc opinion, cxpccncd hcrcin do not ncccowily reflect the views of the ,pora.ooing oegsniation,.

Brian Browne Sullivan County Community College

JUNE 1992 /The Advocate 78 THE RIGHT TO TESTIFY: THE CONSTITUTION’S NEWEST RIGHT

Timothy P. O’Neill

During the last few months, these pages persuasion. A defendant was allowed The doctrine gradually spread from par have celebrated some basic American free rein to plead his case orally before ties ft1 civil cases to witnesses in such rights dating back two centuries. Yet the the jury, including both matters of fact cases. By the end of the 17th century, constitutional right of a criminal defen and law. Yet the defendant did not actu the "disqualification for interest" rule dant to testily at his/her own trial is of a ally "testify" or offer "evidence" per se.7 was firmly ensconced in criminal law, more recent vintage. Surprisingly, the Since a defendant could not be sworn, he affecting both the defendant and his United States Supreme Court didnot di was nota witness; consequently, nothing choice of witnesses. rectly recognize this right until 1987! he said could constitute "evidence." Yet Thus, during the 1990s American courts the jury certainly paid close attention to Thus, only the fear ofperjury supplied the must make crucial decisions establishing the defendant’s presentation. James rationale for keeping the defendant off the exact nature of is newly declared Fitzjames Stephen characterized the the witness stand, for a criminal defen right. Teague v. Lane called it "unlikely" criminal trial of the period as "a lông dant is clearly ar excellence an inter that any basic components of due process argument between the prisoner and the ested witness."t in criminal law have yet to emerge; how counsel for the Crown, in which they ever, the developing body of law on the questioned each other and grappled with THE AMERICAN "right to testify" may prove Teague each other’s arguments with the utmosj EXPERIENCE wrong. eagerness and closeness of reasoning.’ Thus, the 16th century criminal trial The disqualification of a criminal defen In order to understand why this appar lacked three items taken for granted in dant from testifying carried over to the ently most basic of rights has beenso late contemporary trials: defense counsel, de American Colonies. In 1762, a Pennsyl in developing, it is necessary to study the fense witnesses, and sworn testimony vania court refused to swear a defendant historical record. from the defendant. to testify, stating that issues at trial "9ust be proved by indifferent witnesses."1 At THE EARLY ENGLISH The first ofthese areas to change was that the time of the ratification of the Consti CRIMINAL TRIAL of defense witnesses. During the 17th tution it was clear that a critjtinal defen century courts began to allow the defen dant had no right to testify.1 The criminal Dial in early English com dant to call witnesses; by 1701 defen mon law bore little similarity to the con dants had a statutory right to have sfh The real impetus for change in the area temporary American mode. First, the witnesses sworn in all felony cases. It began in 1827 with the publication of 17th century Dial didnqt allow the defen might be assumed that this trend would Jeremy Eeytham’s Rationale ofJudicial dant to have counsel. Second, the law have naturally led to allowing the defen Evidence.’ The gist of Bentham’s argu did not allow the defendrt to call wit dant to offer sworn testimony on his own ment against disqualification for interest nesses on his own behalf. There was no behalf. This did not occur because of a was that a witness’s motive for lying esoteric rationale offered for these rules; civil doctrine which began to applied in should go to the wejht. not the admissi rather, defense lawyers and defense wit criminal cases: the disqualification ? bility, oftestimony. As Lord MaCaulay nesses were barred besause it was held witnesses based on interest in litigation. expressed it, "All evidence should be they were not needed. Wigmore finds This doctrine took root in the 16th cen taken at what it may be worth, that no this statement from 1678 toit the tury and held that parties to a civil action consideration which has a tendency to prevailing spirit of the age: were incompetent as witnesses; by the produce conviction in a rational mind first part of the 17th century, this rule was should be excluded fr9m the considera The fouler the crime is, the clearer and recognized in Star Chamber, the Chan tion of the tribunals." the plainer ought the proof of it be. cery, and courts of common law.11 Wig- There is no other good reason can be more described the reason for the rule in Bentham’s work first came to fruition in given why the law ref useth to allow the this syllogism: England. Between 1843 and 1853, legis prisonerat the barcounsel in matter of lation in the country abolished the incom fact when his life is concerned, butonly Total exclusion from the stand is the peten of interested witnesses i civil this, because the evidence by which he proper safewiard against a false deci cases, parties in civil cases, and is condemned ought to be so very evi sion, whenever the persons offered are spouses of parties in civil cases?2 This dent and so plain that all the counsel in of a class specially likely to speak progress was mirrored in the United the worig should not be able to answer falsely; persons having a pecuniary in States. Wigmore notes that by the late upon it." terest in the event of the cause are spe 1850s most states had abolished disqualjj cially likely to speak falsely; therefore ficationbased on interest in civil cases. With no counsel and no witnesses, a de such pejsons should be totally ex Yet this progress was not paralleled in the fendant had to rely on his own skills of cluded.1 area ofcriminal law, for by the late 1850s not one American jurisdiction had abol

JUNE 1992 the Advocate 79 ished disqualification based on interest how this turned the presumption of in the Court said that the concept of due for criminal defendants. nocence on its head: "But the common process included "certain immutable law nile of disqualification of the de principles of justice. . . as that no man There were several reasons why jurists fendani selects. Whom? The accuser, shallbe condemned in his parson or prop and writers did not believe that what was presumed a perjurer by the presump erty without. . .an ogportunity of being proper for the civil trial was necessarily tion of innocence, alone is heard. The heard in his defense.’ This latter state proper for the criminal trial. Some be accused, for whose benefit such favor ment was cited approvily by the Court lieved that human nature would prevent able presumptions are nominally ni1e; in Powell v.Alabama. In dictum in/n a criminal defendant from testifying the accused-innocent, is rejected." re Oliver,42 the Court provided details on truthfully. As Stephen wrote: just what this "right tobe heard" entailed. His work was directly responsible for The Court said it "included, as a mini ‘The prisoner could never be a real reform in his home state. In 1864, Maine mum, a right to examine the witnesses witness; it is not in human nature to became the first state - indeed the first against him, to offer testony, and to be speak the truth under such a pressure as jurisd9ction in the English-speaking represented by counsel.’ would be brought to bear on the pris world to adopt legislation finding oner, and it is not a light thing to insti crimina’ defendants to be competent wit Again, in Walder v. United States, the tute a system which would almost en nesses, °Other states graduallyfollowed Court alluded to a right to testify when it force perjury on every occasion. It is a Maine’s lead, and by the end of the cen stated, "Of course, the Constitution guar mockery to swear a man to speak t tury all states butGeorgia had abolished antees a defendant the fullest opportua4ty truth who is certain to disregard it.... "disqualification for interest" for crimi to meet the accusation against him." nal defendants. In 1878, a federal stat Anoth2r objection came from those who ute declaring criminal defen34ants corn- In 1961 in Ferguson v. Georgia,45 the believed mat allowing adefendant to take patent to testify became law. United States Supreme Court considered the stand would have the ironic effect of a Georgia law which refused to allow an weakening both the privilege against The American experience in allowing indicted defendant to testify, but instead self-incrimination and the presumption criminal defendants to testify had a pro provided him with the right to make an of innocence. As one court expressed it: found effect on other common law na unsworn statement to the jury and to re tions.Stephen, who previously supported main immune from cross-examination. If we were to hold that a prisoner the dualffication of criminal defen The Supreme Court held that Georgia offering to make a statement must be dants, changed his views and wrote in violated Ferguson’s right to due process sworn in the cause as a witness, it would support of gie competency of criminal by refusing to allow him to have his at be difficult to protect his constitutional defendants. Gradually, common law torney aid him in making his unswom rights in spite of every caution, and nationsfollowed America’s example. By statement. would often lay innocent parties under 1955, England, Australia, Canada, New unjust suspicion where they were hon Zealand, Northern Ireland, Ireland, and Although Ferguson did not explicitly estly silent, and embarrassed and over India had all extended to criminal defen consider the constitutionality of the law whelmed by the shame of a false accu dants the oortunity to testify on their making criminal defendants incompetent sation...It would result in...the degra own behalf. to testify, it certainly suggested that such dation of our criminal jurisprudence by a law was improper. As one commentator converting it into an inquisitory system FINDING THE RIGHT TO noted, "If it is a denial of due process from which weiavethus far been hap TESTIFY not to permit the defendant to be exam pily delivered. ined directly by his attorney, then surely The near unanimity with which Ameri it is an even greater denial of due process These arguments were countered by can jurisdictions established a statutory to refuse the defendant anppportunity Chief Justice John Appleton of the Su basis for the right to estify may have to testify in his own behalf.’ Moreover, preme Court of Maine. Judge Appleton hindered consideration of whether the in concurring opinions both Justices was aBenthamite who tirelessly champi opportunity to 6lestify was constitution Clark and Frankfurter stated that they oned the cause of allowing parties in ally preditted.3 As recently as 1986, the would have held the incorjptency stat cases, bothcivil and criminal, to testify. United States Supreme Court stated that ute to be unconstitutional. He argued that it could just as easily be the court had "never explicitly held that maintained that the accuser, rather than a criminal defendant has a due pccss For the next quarter of a century, the the accused, was lying. The answer was right to testify in his own behalf." The Supreme Court continued to scatterhints not to exclude one or the other from court did finally recognize such a consti that the right to testify was constitution testifying, but rather to let the jury decide: tutioiw right in Rock v in ally predicated. InHarris v-New York the "With equal means of knowledge, with 1987. Before examining the court’s Court stated that "every criminal defen equal power to instruct, with motives to holding in Rock, it is necessary to exam dant is privileged to testify ij his own dependent. on their relative situ ine the state of American law on the issue defense, or to refuse to do so."ffithThe next Court ations.. . both the accuser and the defen at the time the case was decided. year in Brooks v. the dant should be heard and believed. abandoned the "privilege" tenninology until from comparison of their several THE RECORD BEFORE ROCK by stating "whether the defendant is to statements, reasis for belief or disbelief testify is an important tactical decision shall be found." There is no dearth of language in Su well asa matter of constitutional right." preme Court opinions suggesting that Although it had neverbeen squarelyheld, Judge Appleton further contended that some kind of "right to be heard" is an the Court in 1975 wrote that "1t is now disqualifying a criminal defendant essential component of due process. accepted.. .that an accused jts a right...to from testifying was squarely opposed Thus, in 1897 the Court declared: "At testify on his own behalf." to the presumption of innocence of the common law no man was condemned accused, for disqualifying the defen without being afforded opportunity to be These references continued unabate9 decade leading up Rock.5 dant implicitly showed that the law be heard. . . Can it be doubted that due during the !i9 lieved the defendant was guilty and that processof law signes a right to be heard Yet, as previously discussed, in 198k the accuser was truthful. He showed in one’s defense?" The following year, the Court conceded in Nix v. Whitesidr

JUNE1992 IThe Advocate 80 "I

that it had "never explicitly held that a several provisions of the Constitut,qn."68 agent which implicate important rights: criminal defendant has a due rocess First, c4,ng Faretta v. California, Jn re which witnesses should be called; what rightto testify in his own behalç" In his Oliver, and Ferguson v. Georgia, the questions should be asked on direct and concurring opinion in Nix, Justice Court held that the right to testify was a cross examination; what stipulations Elackmun wrote that he was "somewhat fundamental part of the adversary system should be made; what objections should puzzled" by the majority’s assertion that and was thus guaranteed by the due proc be lodged; and which pre-trial motions the constitutionality of the defendant’s ess cuse of the Fourteenth Amend should be made.8’ On the other hand, right to testify remained an "open que ment. Second, the Court found this certain rights have been deemed so "fun tion", and cited Jon5çs v. Barnes, right implicit in the compulsorygocess damental" that they require a personal Brooks v. Tennessee, and Harris v. clause of the Sixth Amendq%ent. Rely waiver by the defendant. For example, a New York5 to illustrate its constitutional ing on Washington v. Texas 7rd United jury trial can be waivedonly witha crimi basis. States v. Valenzuela-Bernal, the Court nal defpdant’s "express, intelligent con reasoned that, if the clause supported the sent." A guilty plea cannot be taken A STATUTORY MAITER right of a defendant to present witnesses witho% the defendant’s personal agree who will provide material and favorable ment. The decision whether or not to The Court’s uncertainty about the consti evidence on his behalf, then it would a appeal a conviction is one for tli defen tutional nature of the right to testify, ex fortiori support the defendant’;hoice to dant,not his attorney, to make. hibited in the 1986 Nix opinion, was re offer such testimony himself. Indeed, flected in the decisions of both state and the Court noted that often "the most im In Rock, the Supreme Court did not have lower federal courts which had grappled portant witness for the defense in.. .c4mi- to decide whether the right to testify like withthe issue. Although the trend in these nal cases is the defendant himself" wise required a personal decision of the courts was in the direction of finding a defendant. Yet, Rock characterized the constitutional basis for the defendant’s Thirdly, the Court found yet another way right to testify as "fundamental," the right to testify, the record was hardly in which the right to testify is guaranteed same word the Court used in Johnson v. unanimous. A number of jurisdictions under the Sixth Amendment. The Court Zer/ist 86 when it formulated its test for which examined the issue recognized no pointed out that Faretta v. California personal waiver of constitutional constitutional basis for the defendant’s held that the Sixth Amendment sup rights. Rock alsg9 cited a quotationfrom right to testify, finding the right to be ported the right of a defendant to waive Jones v. Barnes that the defendant has solely a statutory matter. This was the the assistance of counsel and represent the "ultimate authority to make certain state of the law at the time the Supreme himself at trial, if he so desires, because fundamental decisions regarding the Court nted certiorari in Rock v. Ar so many .of the rights in the Amendmeyk case, such as whether to.. testify in his kansas. accrue personally to the defendant. or her own behalf." Rock then concluded that even more ba A ROCK FOUNDATION FOR sic than the right to represent oneself These intimations from the Supreme THE RIGHT TO TESTIFY would be a defendant’s right to actually Court have not been lost on lower courts. testify in his own words concerning the Since Rock was decided, four federal cir In 1983, Vicki Lorene Rock was charged events in question?9 cuits have faced the issue of whether the with manslaugler in the shooting death decision to testify is fundamental and of her husband. . Because of her inability Finally, Rock found yet a fourth constitu personal to the defendant. All four have to remember the details surrounding the tional basis for the defendant’s right to held that it is, and that it cannot be waive$ shooting, her attorney arranged two hyp testify embodied in the Fifth Amend by counsel against thedefendant’s will. nosis sessions with a licensed neuropsy ment. The court held that the right of a chologist. Following the sessions, Mrs. defendant not to be compelled to be a The more vexing question, however, is Rock rnembered certain exculpatory witness against himself necessarily in what is required to show that a defendant right details. Inresponsetothestate’smotion cluded the right t? testify on one’s behalf has indeed personally waived the to to bar defendant’s "hypnotically re if one so desires. 0 testify. freshed" testimony, the trial judge or dered that Mrs. Rock’s testimony should Although Rock has established once and A "KNOWING AND be limited to "matters remembered and for all that a defendant indeed possesses INTELLIGENT" WAIVER? stated to the Qiypnosis examinerrior to a federal constitutional right to testify, the being placed under hypnosis?’ With full contours of this right have yet to Since Rock, two circuits have squarely this limitation on her testimony, Ms. emerge. Courts in the l990s will face two confronted the issue of what constitutes Rock was convictedof manslaughter. On crucial issues. First, it must be decided a proper waiver of the right to testify. appeal, the Arkansas Supreme Courtheld whether the defendant or hisher attorney 91 as a matter of law that a witness’s hyp should have the final decision on whether In United States v. Martinez, the de notically refresbgd testimony was inad the defendant testifies. Second, in those fendant contended that his right to testify missible per se. cases in which the right to testify is was violated when his attorney refused to waived, courts must establish the proce allow him to take the stand. At a hearing The United States Supreme Court found dures for accepting such a waiver. on defendant’s motion for a new trial, the such a per se rule as applied tg7 a defen defense attorney testified that "Mr. Mar dant to be unconstitutional. Before WHOSE RIGHT IS IT tinez expressed to me the desire to tes reaching this decision, however, the ANYWAY? tify; and I said no way, that I thought it Court first had to squarely confront the was suicidal.... I just made the decision issue of whether a defendant has a con Constitutional rights possessed by cilmi he was not going to testify, I refused to stitutional right to testify in her own be nal defendants can generally be divided call hh%and that was the way it went half. After briefly reviewing the histori into two categories: those which can be down." cal transition from the defendant’s in waived through the actions of defen competency to competency in common dant’s counsel and those which can be The Ninth Circuit first held that the right law jurisdictions, Justice Blackrnun’s waived only by the defendant. In the for to testify was both fundamental and per opinion for the Court stated that the right mer category lies a myriad of trial deci sonal and that 5could be waived only by of the defendant to testify "has sources in sions made by counsel as a defendant’s the defendant. It then held that the de

JUNE 1992/The Advocate 81 fendant’s waivçr must be "knowing" and tended that clearly providing a defendant Arkansas once and for all acknowledged "intentional"." Applying these concepts with all his constitutional options could the right. It is now time for American to the case at bar, the court held that the only enhance values of fairness and dig courts to construct mechanisms to turn fact the defendant didnot actuallytestify nity. The "defense strategy" in this area this right into a reality. provided a sufficientbasis to inferthat he concerns a decision belonging to the de had waived his ght to testify. Over a fendant personally. Therefore, informing TIMOTHY P. O’NEILL vigorous dissent, the Wmth Circuit both the defendant Of this fact cannot interfere AssociateProfessor refused to require the trial court to advise with the attorney/client relationship. Fi John Marshall Law School the defendant of his right to testify and nally, the time when the defense rests Chicago, illinois 60604 refused to demand an on-the-record would be an entirely appropriate time to waiver from the defendant. guarantee that the defendant understands his right. Reprinted from the May, 1991 The Like the Ninth Circuit, the Elevnth Cir Champion, a publication of the National cuit in United States v. Teague faced a THE FUTURE Association of Criminal Defense Law defendant claiming a violation of his yers by permission of NACDL and the right to testify arising from the refusal of The judicial reaction to Rock is only be- author. his attorney to allow him to take the ginning. The holdings in Martinez and stand. Like the Ninth Circuit, the Elev Teague seem paradoxical: "The right to NOTES enth Circuit also found the rightto testiçy testify is personal and fundamental, but to be both fundamental and personal. whatever you do, don’t tell the defen ‘Rock v. Arkansas, 483 U.S. 44 1987. Yet unlike the Ninth Circuit, - the Eleventh dant!" The resolution of this paradox 2489 U.S. 288 1789: Circuit refused to infer waiver from the that is, defining the role the trial court mere fact the defendant did not testify. should play in a defendant’s decision 3Popper, "History and Development of the Ac Rather, in reversing the conviction, the whether tosy - promises to be one of cused’s Right To Test jfy," 1962 Wash. U.L.Q. 454-55. This nile was changed by stamte for court relied on testimony presented at a the key criminal procedure issues of the treason in 1695 and for felonies m1eneral in hearing on defendant’s motion for a new l990s. 1836. 5. Wigmore. Evidence & 575, at 809 trial that the defendant had expressed an Chadbourn rev. ed. 1979. "unwavering desire" to testify to his at Courts havethree basic options. They can at 455. torney throughout trial and that the attor choose to keep the thai judge out of the Popper, supra note 3 ney had rested the defense case 1vithout decision and to presume that the defense J. Wiginore, supra note 3 & 575. consulting with the defendant.9 How attorneywill guarantee that the defendant ever, the court refused to suggest any will personally decide whether or not to 61d. & 575, at 809 n. 44 quoting L.H. Steward Finch, in Lord Cornwallis’ Trial. 7 How. St. Tr. mechanism for guaranteeing proper testify. Under this system, failure of the 143, t49 1678. waivers in the future, stating only that defendant eitherto testify or to notify the whether a proper waiver occurs will de trial court of his desire to testify will be 71d. & 575. pend on the’partkularcircumstances of construed as a waiver.10 5. Stephen History of the Criminal Law of each case." England 355, 440 1883, quoted in Popper, A second option is to require the thaI supra note 3, as 455. Thus, despite their different outcomes, judge to suasponte inform the defendant both Martinez and Teague hold that a of his right to testify and to accept an 97Will. 3, ch. 3: Anne. st. ch. 9, cited in Ferguson defendant’s right to testify is personal on-the-record waiver from a defendant v. Georgia. 365 U.S. 570, 574 1961. and fundamental, yeteach fails to estab who does not testify. This system,-ug ‘0Popper, supra note 3, at 456. lish a mechanism for communicating this gested by the dissent in Martinez - is to the defendant. follo%d in West Virginia and Colo "W. Holdsworth, A History of English Law 194 rado. 1926. The Martinez court put forth sevemi rea 12j Wigmore, supra note 3, & 576, 810. sons why it believed the trial judge A third option might be to combine these should not inject himself/herself in any two systems by requiring the defense at 13 Popper, supra note 3, at 456. way into the defendarjçs decision torney to have the non-testifying defen 14 Ferguson v. Georgia, 365 U.S. 570, 574 whether or not to testify. The Court dant make an on-the-record waiver out 1961. noted that along with the right to testify side the presence of the jury. The defense thereis a converse rightnoi’ to testify. The attorney would ask all questions of the v. Lukens, U.S. 1 DalI. 5,61762 quoted at 575. &inth Circuit feared that by advising the defendant to establish the waiver, while in Fergusc.n,365 U.S. defendant of his right to testify, the trial the thal judge wOuld generally pla&o ‘6McGautha v. Calfornia, 402 U.S. 183, 214 court might threaten the exercise of the role other than accepting the waiver. 1971. converse right. It questioned whether ‘7j. Bentham,Rationale ofJudicial Evidence c. such a colloquy might Interfere bothwith The importance of this issue cannot be Berlcowitz&S.Thomeed. 1978 London 1827. defense strategy and with the attorney- underestimated. If it is determined that client relationship. Finally, it cited the the right to testify is indeed such a per ‘8’See 5. Wigmore, supra note 3, & 576 at 811-15 difficulty a trial judge would have in sonal, fundamental right that its waiver discussing J. Benthain, supra note 24. when silent record, knowing to initiate sucha colloquy; cannot be presumed from a ‘ Lord McCaula ‘a Legislative Minutes 214 C. a trial judge would not positively know it could be argued that this might consti Dharker ed. 19463 1835. that a defendant would not testify until tute one of the "watershed" rules con the defense rested, which might be an cerning "bedrock procedural elements" 24. Popper, supra note 3, at 458. awkward time to raise the issue. which would constitute one of thJ’eague 21. v. Lane "new rule" exceptions.’ Its ef ‘a. These reasons were countered by Judge fecton habeas corpus would be dramatic. 22 /d. Reinhaxdt in his Martinez dissenr’°’ He challenged the contention that informing This coming decade could be the most 3. Wigmore, supra note 3, & 576, at 817. a defendant of his right to testify might important in the entire history of the right ‘ 5. Stphen, A General View of the Criminal interfere with the opposite right. He con- ofa criminal defendant to testify. Rock v. Law bf England201-021863 quoted us Popper,

JUNE 1992 /TheAdvocate 82 a- supra note 3, at 458-59. 41, 56 n.2 1978 Stewart, J., dissenting con 422 U.S. 806 1975. tendmg that right to testify is found in the Sixth People v. Thomas, 9 Mich. 314, 320-21 1864 and Fourteenth Amendments; United States it. ° 333 U.S. 257 1948. concurring opinion quoted in Ferguson v. Salvucci, 448 U.S. 83, 96 1980 Marshall, J., Georgia, 365 U.S. 576,578-79 1961. dissenting "constitutional" right to testify: 71365 U.S. 570 1961. Jones it. Barnes, 463 U.S. 745, 751 1983 de 26 For a discussion of Appelton’s influence, see fendant’s decision to testify is fundamental. 72 I? ock, 483 U.S. at 51. Popper, supra note 3, at 460-63. supra note 44 and accompanying text. at 52. Popper, supra note 3, at 461 quoting J. Ap pleton, Evidence 123-24 1860. 475 U.S. 157 1986. ‘388 U.S. 141967. 55id. at 164. 7545g U.S. 858 1982. See Ferguson v. Georgia, 365 U.S. 570, 577 Id. at 186 n.5 Blackynun, J. concurring. 76Rock, 483 U-S. at 52. 1961. 463 U.S. 745 1983. 77 Id. 3° 1864 Me. Laws 280. 406 U.S. 605 1971. 78 31 As the Rock court expressed it: Ferguson, 365 U.S. at 577-78. 4o1 U.S. 2221971. . . recognized that the 32Eradley,Havens,Jenkins Salvucci 1n Faretta. the Court and andthe 60 Sixth Amendment "grants to the accused person Defendant’s "Right" to Testify, 18 Mn. Crim. L. See e.g., United States it. Systems Architects, ally the right to make his defense. It is the ac Rev. 419,420 n. 171981. inc. 757 F.2d 373,375-76 1st Cir. dictum due cused, not coqnsel, who must be ‘infonned of the process clause of fifth amendment may grant nature and cause of the accusation,’ who must be supra note 24 and accompanying text accused right to testify, cert. denied, 474 U.S. ‘confronted with the witnesses against him,’ and 847 1985; United States it. Bfteld 702 p.24 who must be accorded process for Cir. right to testify derived from ‘comPulsoix am convinced by much experience that ques 342, 349 2d obtaining witnesses in his favor. ‘ Emphasis tionmg, or the power of givmg evidence, is a Fifth and Sixth Amendments. cert. denied. 461 positive assistance, U.S. 931 1983; Alicea it. Gagnon, 675 F.2d and a highly important one, 913. 923 7th Cir. 1982 Fifth, Sixth and Four to innocent men, and! do not see why in the case 79/d. at 52. of the guilty thereneed be any hardship about it.... teenth Amendments give rise to right to testify; A poor and ill-advised man...is always liable to Ashe it. North Carolina, 586 F.2d 334, 336 4th 80 qir. 1978 due process requires defendant be id. at 52-53 citing Harris it. New York, 401 nusapprehend the true nature of his defense, and U.S. 222 1971 and Mailoy it. Hogan, 378 U.S. might in many cases be saved from the conse given opportunity to speak if he so requests, 11964. quences of his own ignorance or misfortune by cert. denied, 441 U.S. 966 1979; United States cx rel. Wilcox it. Johnsan, 555 F.2d 1153rd Cir. being questioned as a witness. 5. Stephen, supra See, e.g., Standards for Criminal Justice, note 8, at 444, quoted in Ferguson, 365 U.S. at 1977 right to fair trial includes right to testify; UnitedStates v.McCord,420 F2d 255 D.C. Cir. Standard 4-52 24 ad. Supp. 1986 Qiereinafter 1969; United States it. Butts, 630 F. Supp. 1145. Criminal Justice. Ferguson, 365 U.S. 577-78. 1148 D. Me. 1986 right to testify basic to a fair at trial; Carter v. State, 424 So. 2d 1336, 1340 Adams it. United States er. rel. McCann, 317 Ala. Crim. App. 1982 state constitution; U.S. 269, 277 1942, accord Patton it. United See Alicea v. Gagnon, 675 F.2d 913, 920-23 Hughes v. State, 513 P.24 1115 Alaska 1973; States, 281 U.S. 276 1930. 1982 finding constitutional right to testify un der Fifth, Sixth, and State it. Noble, 109 Ariz. 539, 514 P.24 460 Fourteenth Mnendxnents. 1973; Figeroa it. Stale, 244 Ailt. 457, 425 83floykinvAlabwna;395 U.S. 2381969. S.W.2d 516 1968; People it. Mosqueda, S Ca. 37Nix v. Whiteside, 475 U.S. 157, 164 1986. App. 3d 540, 85 Cal. Rjtr. 346 1970; People it. Jones it. Barnes, 463 U.S. 745, 751 1983 Curtis, 681 P.2d 504 Lob. 1984, see supra note dictum. 483 U.S. 44 1987. For a discussion of Rock; 7; Hall it. Oaklçy, 409 So. 2d 93 J1la. 1982 state see uifra notes and accompanying text constitution; People it. Knox, 58 Ill. App. 3d 761,374 N.E.2d 957,959-601978 defendant’s 85Rockv. Arkansas, 483 U.S. 44,53 n. 101987. Hovey v. Elliott, 167 U.S. 409, 415, 417 right to testify is of "constitutional dimension"; 86304 1897. Schertz it. State, 380 N.W.2d 404, 413 Iowa U.S. 458 1938. Commonwealth Hennessey, Mass. 1985; it. 23 rid Holden v.Hardy, 169 U.S. 366,389-901898. App. Ct. 384, 502 N.E.2d 943 1987: People v. at 464. Farrar, 36 Mich. App. 294, 193 N.W2d 363, 41 287 U.S. 45,68 369 1971; State v- Rosillo, 281 N.W.24 877 463 U.S. 745 1983. 1932. Mtnm 1979; Ingle it. State, 92 Nev, 104, 546 P.2d State it. 89 42333 U.S. 257 1948. 598 1976; Douglas, 292 Or. 516, Rock, 483 U.S. 44, 53 n. 10 1987 citing 641 P.2d 561 567 1982 Lent J., concurring; Jones it. Barnes, 463 U.S. 745,751 1983.Jones Campbell it. .tate, 4 Tens,. Crim. App. 100, 469 cited two sources for this dictum: Justice Bur "aid. at 273 emphasis added. S.W.2d 506, 509 1971; State it. Hardy 37 ger’s concurrence in Wainwright it. Sykes, 433 Wash. App. 463, 681 P.2d 852, 854 1984; state U.S. 72,93 n.l 1977 Burger, CS., concurring 347 U.S. 62,65 1954. it. Albright, 96 Wisc. 24 122 291 N.W.2d 487, and Standard 4-5.2 ofthe American Bar Associa 490 cert. denied. 449 U.S. 95’7 1980. tion - Standard for Criminal Justice. See A.B.A. Justice, The 365 U.S. 570 1961. 61 Project Standards for Criminal See e.g., Young it. Ricketts, 242 Ga. 559, 250 Prosecution Function and Defense Function, 25, See GA. Code Ann. &38-415 1933. In 1973, S.E.2d 404, 405-06 1978 right to testify not a 2, pp. 237-238 App. Draft 1971. Georgia abandoned the policy of only allowing a guaranteed personal nght, cert. denied, 442 U.S. cnmmal defendant the opportunity to make an 934 1979; State v. McKenzie, 17 Md. App. 563, 90 Rogers-Bey it. Lane, 896 F.2d. 279, 283 7th unswom statement, and now through statute 303, A.2d 406, 413 1973 right to testify is Cit. 1990; United States it. Long, 857 P.24436, guarantees the right of the defendant to testify at statutory, not constitutionaD; State it. Hutchin 447 n. 9 8th Cir. 1988; United States it. Mar her own tnal. See GA. CODE ANN. 17-7-28 and son, 458 S.W.2d 553, 554 Mo. 1970. tinez, 883 F.2d 750,7569th Cit. 1989 petition 24-9-20 1982. 89-7539 My 11, 1990; 62479 for cert. filed, No. U.S. 947 1986 granting certiorari. United States it. Teague, 908 F.2d 752,75711th ‘ Note, Due Process v. Defense Counsel’s Uni Cir. 1990. See also United States cx. ref Wilcox lateral Waiver of the Defendant’ sRiRk to Tes 63Rock it. Arkansas, 483 U.S. 44, 1987. it. Johnson, 555 F.2d. 115, 118-19 3d Cir. 1977 tify, 3 Hastings Const. L.Q. 517, 523-’4 1976. and United States it. Butts, 630 F. Supp. 1145, Id. at 46-47. For example, she recalled that her 1147 D. Me. 1986. Ferguson, 365 U.S. at 601 Frankfurter, 5. fingers had never been on the trigger, thus sup 91 concurring;Jd. as602 Clark,J. concurring. porting a claim that the gun discharged acciden 883 F2d 750 9th Cir. 1989, petition for cert. tally. filed, No. 89-7539 May 17, 1990. 494Øj U.S. 222, 225 1971. 651d. at 47. 92883 F.2d at 752. U.S. 605, 612 1972. Rock it. State, 288 Ark. 566, 708 S.W.2d 78, 883 F.2d 756. Faretta it. California, 422 U.S. 806, 819 n-IS 811986. 1975 citing Harris v-New York, 401 U.S. 222, MId., citing Johnson v.Zerbst, 304 U.S. 458,464 225 1971. 6’7Rock, 483 U.S. at 62. 1938. 52 See, e.g. United States it. Grayson, 438 U.S. 681d. at 51. at 761-774 Reinhardt, J-, dissenting.

JUNE1992 IThe Advocate 83 Li 908 F2d 75211th Cir. 1990.

9’ld. at 757. seld. at 760. 99Id. 883 F.2d at 759-760. 101 Id. at 766-767 Reinhardt, S., dissenting. 102 See Martinez, 883 R2d at 760 for a list of courts taking this position. 103 833 F.2d at 764, n. 11 Reinhardt, S., dissent ing. 104 See State it. Neuman, 371 S.E24 77, 81-82 W.Va. 1988; People it. Curtis, 681 P.24 504 Cobo. 1984. See also Cu!bertson it. Stale, 412 So.2d 1184, 1186-87 Miss. 1982 suggested but possibby not iequired. 105 See O’Neill Vindicating The Defendant’s Constitutional Ajght To Testify At a Criminal In all criminal Trial: The Need ForAn On-The-Record Waiter, 51 U.Pitt. L.R. prosecutions, 1990. 809 the accused 106 109 S. Ci. 1060 1989. shall enjoy the right toaspeedy and public trial, by an impartial jury ofthe State and district wherein the crime shall have been committed....

Anundm.nt Vt

I sincerely A PLEDGE OF RIGHTS believe it is the best that could I pledge allegiance to our individual liberties be obtained.,. embodied in our Bill of Rights; and with a constitutional the first, fourth, fifth, sixth, eighth, door opened and fourteenth amendments, for amendment hereafter, the and to the values which they protect, adoption of it... one nation of diverse people, is in my opinion with liberty and justice for all. desirable."

JUNE 1992 IThe Advocate 84 HAPTER 6

Constitution of ‘The ‘United States Rmendment ‘12

In allcriminal prosectalons the accused s/ía/TIhave compul sory processfor obtaining witnesses in his favor.

Constitution of 7centucky Section 11

Rights ofaccusedin criminaiprosecution; change ofvenue to have compulsoryprocessfor obtaining witnesses in hisfavor.

JUNE 1992 IThe Advocate 85 Amendment VI:The Compulsory Process Clause

Edward J. Imwinkelried

The history of compulsory process is rules 1f evidence to govern their delibera it had evolved into a truly adversary pro the story of the development of the tions. ceeding, adversary process aix! the demise of the inquisitorial method. Early in the 15th century, the jury began The Recognition of the Right to change. The jury was transformed to Present a Defense in The sad tmth is that in many countries from a roup of witnesses into a group of America around the world, criminal-defendants judges. As communities grew, it be are routinely convictedwithut an oppor came more and more difficult to find 12 It was to be expected that America would tunity to present a defense. Even when residents with firsthand knowledge of the follow England’s example and adopt the defendant is present at the trial, he facts. There was increajng reliance on adversary model for its criminal trials.t may not be accorded any right to intro independent witnesses. Although ju Royal charters created the original Eng duce efculpatory evidence on his 09 rors had earlier served as witnesses and lish settlements in America: Those char behalf. The "trial" is largely a charade. triers of fact, during this period they be ters purported to guarantee colonists all One of the distinguishing features of ty came solely th&s of the evidence pre the ripits and liberties of English citi rannical government is the accused’s lack sented to them. zens. of a right to present an effective defense. During this period the prosecution en Moreover, before migrating to America, THE RECOGNITION OF THE joyed a marked advantaged in both pre many of the colonists had personally ex RIGHT TO PRESENT A paring its casfor trial and presenting its perienced the injustice of the wlier Eng DEFENSE IN ENGLAND case at trial. The criminal trial was lish inquisitorial proce4ures. William marked by an "imbalance of adv35ntage Pennisacaseinpoint. 1n1670,hehad In contrast, the birthplace of the common between the state and accused." For been anested for delivering a speçfh to law, England, recognizes an accused’s example, the prosecution could summon an unlawful assembly of Quakers. He right to present a defense at trial. In witnesses to testify at trial anç place its was thed on the charge at the Old Bailey. England, the recognition of the right was witnesses under oath at trial. The ac When he attempted to defend himself at the product of a longprocess of historical cused’s rights were virtually non-exis trial, the court interrupted him and or development. tent. The accused had no right to person dered him forcibly movedo a walled-off ally confront adverse witnesses, sub corner of the courtroom. For all prac In the medieval period, thaI by jury was poena favorable witnesses, or even to ticpurposes, he was thentried in absen one ojthe methodsof deciding a criminal present witnesses who were willing tia. The royal charter Pnn later re case. When charges were brought by the testify-much less to do so under oath. ceived thed in absentia.3 The royal King, an alternative method was trial by The accused could make only an un charter Penn later received authorizQj physical ordeal. If the charges were sworn statement to the jury.21 In effect, him to promulgate laws for his colony. brought by private parties, the case could the thal w a one-sided prosecutorial He exercised that authority to issue the also be decided by physical combat or inquisition. Frame of Government in l682nd the compurgation, in which each party pro Charter of Liberties in 1701. Those duced witnçsses swearing to his ntst Near the end of the 16th century, Parlia documents specifically provided for worthiness. ment began toonect the imbalance in accused’s right "to put on a defense.’ criminal trials. In 1589 and 1606, Par Indeed, by English standards, he was By the middleof the medieval period, the liament adopted statues granting an ac ahead of the time; in the Frame of Gov petit jury had become the prima9 cused a right in somq cases to present ernment he guaranteed the accusi the method of deciding criminal charges. witnesses in his favor. 4By the middle of right to present sworn testimony.3 He However, the medieval petit jury bore the 17th century as a matter of course promulgated these documents well be- little resemblance to a modem jury9 courts permitted defensj witnesses to fore the Engh courts recognized that There were no independent witnesses. give unsworn testimony. Gradually the general right. The jurors gemse1ves were the primary courts be6gan allowing sworn testimony witnesses. They were chosen in part as well.2 In a statute settling a conflict After the colonies became states and de becauseof their part personal knowledge between England and Scotland, the Par clared their independence from whatthey of the events and persons involved in the liamnent gave certain defendants the right regarded as an oppressive English re litigation. They residedin the neighbor to subpoen9 witnesses and place them gime, they were understandably even hood were the alleged crime occurred, under oath. ‘ "by 1702 that limited ex more concerned about protecting the in and they functioned as a sworn body of ception would fmally be the rule in Eng dividual citizen’s liberties. The new inquestto detewiine the defendant’s guilt land in all criminal cases."28 The thai states expressed that concern in their bills or innocence. There were no formal was no longer a prosecution inquisition; of rights.4’ Nine state constitutions in-

JUNE 1992 IThe Advocate 86 a- cluding bills specifically recognizing an was little felt need to guarauee a right to clause as merely a guantee of the right accuse%s right to produce defense wit override evidentiaryrules. At tlt time to subpoenawitnesses. Dean Wigmore nesses. In three states, the bills granted there were few evidentiary rules; thals took the position that the clause left the the accused tl right"to call for evidence were colucted in a relatively free form courts and legislatures free to fashion in his favor." Two state constitutions, fashion. The great formalization of evidentiary rules; the only guarantee un those of Massachusetts and New Hamp evidentiaryrules occurred apr the adop der the clause was th right to compel shire, expressly guaranteej the right to tion of the Bill of Rights. The sixth witnesses’ attendance. 6 present defense evidence. amendmentswept away the existing, sig nificant obstacles to the effective presen In 1967, the Supreme Court fmally broke The Elevation of the Right to tation of a defense, such as the denials of its long silence on the compulsory proc Constitutional Status an accused’s rights to compulsorygoc ess clause. In that same year, the Su ess and counsel in English practice. By preme Court rendered its decision in tl Many of the original state constirntions doing so, the Founding Fathers thought landmark case of Washington v. Texas. included bills of rights enumerating and that they had adequately protected tl9 In that case, the Court dealt with the protecting such civil liberti9p the right accused’s right to present a defense. constitutionality of two Texas statutes to present defense evidence. However, They did notaddress the subject of a right providing that an accused could not call the original nat4nal Constitution lacked to override specific evidentiary rules for as a defense witness any person charged a bill of rights. Pressure for a national the simple reason that evidentiary rules or previously convicted as a principal bill of7 rights began to mount immedi were notyet perceived as amajorimpedi accomlice, or accessory in the same ately.4 Several states proposed amend ment to ije presentation of an effective crime. The statutes renderedsuch per mentsg the Constitution to add a bill of defense. sons incompetent as defense witnesses; rights. North Carolina refused to ratify the statutes altogether precluded the ac the Cons jction until a bill of rights was Although the compulsory process cused from calling them as witness at approved.4 In their recommendations, lafises attracted little attention during trial. four states, including Virginia, specifi the debates over the Bill of Rights, the cally proposed securing the accused clause soonbecame a centerpiece ofcele The accused, Jackie Washington, was right to present witnesses in his favor. brated litigation. ColonelAaron Burr was charged with murder. Washington at The North Carolina proposal guaranteed charged with treason and misdemeanor. tempted to call Charles Fuller as a wit the accused the rigl11 "to call for evi General James Wilkinson sent President ness. Fuller had already been convicted dence.., in his favor." Most state recom Jefferson a letter indicating that Burr was of murder in the same shooting incident. mendations "referred generally to the de planning to invade Mexico and establish Citing the two Texas statutes, the prose fendant’s rightto present evidencjpn an a sarate government under his con cutor objected to Fuller’s testimony; the equal basis with the prosecution." trol. The thaI judgew none other than trial judge sustained the objection. With Chief Justice Marshall. out the benefit of Fuller’s exculpatory James Madison drafted the Bill ofRights, testimony, Washington was convicted. including the sixth am9s4ment guarantee During the litigation, the Chief Justice The Supreme Court reversed the convic of compulsory process. In drafting the authored two opinions discqssing the tion. In doing so, the Court issued two sixth amendment, Madison relied pri compulsory process clause. In both significant rulings. mjry on the Virginia recommendations opinions, he g,ve the clause "a sweeping The original Virginia recommenda constructioit" 4He issued the first opin First, writing for the majority, ChiefJus tion included the lguage, the right "to ion when Burr sought a subpoena duces tice Warren held that the compulsory call for evidence. However, Madison tecu."n to require the President to produce process guarantee is so fundamental that substituted the present wording, the original letter from General Wilkin it is incorporated in the due process pro the"right...to have compulsory props son. Chief Justice Marshall held that vision of the fourteenth amendment. The for obtaining witnesses in his favor." Burr could obtain a subpoena for the guarantee is therefore enforceable di President even befor an indictment was rectly against the states. During the deliberations over the pro returned in the case. The Chief Justice posed Bill ofRights, there was little de relied on the compulsory process clause Second and even more importantly, the bate relat9 to the compulsory process as authority and asserted that the clause Courtheld that the Texas statues violated provision. Although other provisions "must be so construedas be something the guarantee. Texas had argued that it of the proposed Bill provoked heated de more than a dead letter." 6 Quite to the had not denied Washington compulsory bate,"the framers adopted ... Madison’s contrary, the clausmust be deemed sa process; it allowed him to subpoena draft of the sixth amendment.., almost credbythe courts." Thecatalystforthe Fuller-it merely precluded him from withouk debate and largely as pro second opinion was the President’s fail calling Fulleras a witness.Writing for the posed." 8During the discussions, no one ure to surrencpr the letter in response to Court, Chief Justice Warren asserted that even suggested that Madison’s compul the subpoena. 8 Burr then moved to con "[tjhe Framers of the Constitution did not soryrocess language was too resthc tinue the thal until the esident com intend to commit the futile act of giving tive. The leadjpg commentatfs. Pro plied with the subpoena. Chief Justice to a defendant the right to secure the fessors Westen and Clinton, agree Marshall emphasized that it would be "a attendance of witness hose testimony that the most reasonable inference is that very serious thing" to withholç’mate he has no right to use." The Chief Jus the state representatives assumed that this rial" evidence from the accused. tice declared: compulsory process language"was fin plicitly as brgd as their comparable state After Bun, however, the Chief Justice’s This Courthad occasion ‘mhz re Oliver, provisions." They apparently pre worst fear was realized: The compulsoi’ 333 U.S. 2571948, to describe...the sumed that the excess guarantee of a sub process clause became a "dead letter." most basic ingredients of due process poena right implicitlyincluded the other The clause was donant82 for roughly a of law: "A person’sright to reasonable features of tl right to present an effec century and a half. "Until 1967 the Su notice of a charge against him, and an tive defense. preme Court addressed it only five times, opportunity to be heard in his defense twice in dictum and threa times while a right to his day in court-are basic in ProfessorClinton adds that at the thne of declining to construe iL" During this our system ofjurisprudence; and these the adoption of the Bill of Rights, there period, most courts conceived of the rights include, as a minimum, a rightto

JUNE 1992 IThe Advocate 87 examine the witnesses against him which have the more limited effect of exclusionary rules applicable to evidence [and]to offer testimony." preventing a witnessfroragiving particu seized in violation of the fourth amend lar testimony in question was not only ment, involuntary and unwarmed confes The right to offer the testimony of wit critical to Chamber’s defense, but also sions obtained in violation of the fifth nesses, and to compel their atten "bore persu&ive assurances of trust amendment, and identification evidence dance, ifnecessary, is in plain terms the worthiness.’ Coupled with another er secureçl in violation of the sixth amend right to present a defense, the right to roneous ruling, the exclusion of the hear ment The effect of these rules are present the defendant’s version of the say evidence "denied [Chambs] a thal essentially negative; their operative im facts as well as the prosecution’s to the in accord with...dueprocess,"1 pact is to exclude relevant prosecution jury so it may decide where the truth evidence. However, the Burger and lies. Justas an accusedhas therightto The Importance of the Elevation Rehnquist Courts have placed far more confront witnesses for the purpose of of the Right to Constitutional stress on constitutional g6antees re challenging their testimony, he has the Status lated to the search for truth. Although right to present his own witnesses to the Burger and Rehnquist Courts have establish a defense. This right is a fun Important direct and indirect conse retreated from many of the Warren damRtal element of due process of quences flow from the constitutionaliza Court’s liberal positions on the scope of law. tion of the accused’s right to present de the fourth, fifth, and sixth amendment fense evidence. exclusionary rules, they have not aban Based on this reasoning, the Court doned the constitutional right to present granted the accused a general "right to The direct consequence is that defense defense evidence that Chief Justice War put on the stand a witness who [isi physi counsel now have a constitutional argu ren himself announced in Wash4r4gton. cally and mentally capable of testifying ment for overriding exclusionary rules in Decisions,14y both the Burger’ and to events that he [has] personally ob the form of statutes, common law deci Rehnquist Courts have upheld the served, and whose testimony would have sion, or court rules. In our legal hierarchy, right and relied on the right as the premise been rcjevant and material to the de a constitutional rule takes precedence for overriding exclusionary rules of evi fense." overstatutes, the common law, and court dence, The Supreme Court case law on rules. A constitutional provision is of the scope the right"greatlyfavor[s] the Like most landmark Supreme Court de higher ditty than a statute of common accused"t and "broadly protects" the cisions, Washington left many questions law rule. 1 In the event of a conflict accused’s1%mstitutional right to present unanswered. One pivotal question was between a constitutional provision and evidence. On twoi, the Court whether the Washington doctrineapplied either a statute or common law rule, tl5 has mandated the admission of defense only to broad incompetency rules which constitutional provision prevails.’ evidencein the face of exclusionaryniles completely barred perso from appear Hence, when an exclusionary rule in any which at the time represented maority ing as defense witnesses. Suppose that ofthose threeforms blocks the admission views among American courts.1 By the jurisdiction’s evidentiary rules per of important defense evidence, the de recognizing this new constitutional right, mitted the person to take the stand, but fense can argue that the constitutional the Court has given defense attorneys a resthcted the content of their testimony. right to present gefense evidence ‘ sword tçy can use as an dffensive Assume, for example, that the jurisdic preempts the rule. 0 weapon. tion’s hearsay rule prevented a defense witness from testifying to critical excul Although the Supreme Court’s decisions Many state and lower federal courts are patory facts. Could the defense invoke in Washington and Chambers had the likewise enforcing this constitutional Washington to override the rule? Many potential tqevolutionize criminal evi right vigorously.The trend is particularly courts thought 4iat the answer was no. dence law, in the years immediately pronounced in cases in which defense People v. Scott9 is illustrative. In Scott, following their rendition they had little counsel have employed the right to over the thal judge excluded defense hearsay impact. In 1983, one commentator sur ride privileges blocking the admission of testimony. In addition to arguing that the veyed the state and lower federal court relevant defense evideqe. Those cases testimony fell within a hearsay exception cases jpplying Washington and Cham display"a strong trend"1 toward uphold recognized under Illinois law, the ac bers.’ That commentator concluded ing the right at the expense of invalidat cused contended that Washington re that the stateand lower federal courts had ing the privilege.A "substantial number" quired the admission of the testimony. given Washington ançlChambers "an of courts have accepted defense argu The court rejected the contention. The ambivalent reception." The commen ments that the accused’s constitutional court stated flatly that "[tihere is no sug tator characterized the e of the case right utweighed the conflicting privi gestion in Washington that the admission law as "clearly mixed." Many courts lege.’ Indeed, one commentator asserts ofotherwiseinadmissaje hearsay is con had rejected defense argumep based on that the defense has prevailed ftj’jnost stitutionally required." Washington and Chambers. As a gen cases" presenting that conflict. By eral proposition, the courts seemed to way of example, to date there have been The Supreme Courtultimatelyproved the slight the inrtance of Washington and four cases adjudicating conflicts between Scott court wrong. In 1973, the fourt Chambers." the defense right and privileges for state decided Chambers v. Mirsissippi.9 One me9%jby victims to rape crisis counsel of the alleged constitutional errors inthat However, it is now evident that there is a ors. Three of the four cases have re ie conflict in favor of the de case was the trial judge’s exclusion trend toward applying the defense right solvM2 critical exculpatory hearsay evidence. to present evidence more expansively. fense. The C%qrt powerfully reaffirmed WashL For its part, the Supreme Coi?r has con ington. Citing Washington, Justice sistently protected this right 1 and has The lower courts have even gone to the Powell found that the trial judge’s ruling invoked this right to override exclusion length of extending this constitutional violated the accused’s "right to aesent aryrs-ranging from the hearsay d% right to information which is ordinarily witnesses in his own defense." The Dine to ruleç limiting impeachment not considered formal evnce, namely, Court thus refused to apply the right to to privileges." During the WarrenCourt the accused’s demeanor. Suppose, for competency rules altogether barring a era, defense attorneys were accustomed example, that the accused has raised an witness’s testimony. The Court ex to using the proviions of the Bill of insanity defense. May the state insist that tended the right to evidentiary rules Rights as a shield.’1 They resorted to the the accused be sedated at thaI? The ac

,JUNE 1992 IThe Advocate 88 cused’s unsedateddemeanor in the court A state court used the same construc Law Professors Advisory Board. This th room mit be highly probative of his tional qchnique in Commonwealth v. tide is based in part on rjmwiuelried, insanity. Some courts have refused to Joyce.’ In that case, the accused was Exculpatory Evidence: The Accused’s grant the accused an absolute right to charged withrape. The accusedsought to Constitutional Right to Present Favorable appear in court in a drug-free state; these introduce evidence of the alleged vic Evidence Michie Publishing Co. 1990. courts reason that the accused’srights are tim’s prior sexual activity. The prosecu Reprinted with permission of the author sufficiently protected if the jury is in tor objected on the ground that the state and The Champion, a publication of the forme9hat the accused has been medi rape shield statute baned the evidence. NationalAssociation ofCrimionalDefense cated. However, other courtsat least The court refused to adopt the prosecu rs. in dicta have recognized the accused’s tor’s proposed interpretation of the stat right tp present his unsedated de ute. The defense had argued that as con Notes meanor or have squarely held that the strued by the prosecutor, the statute accusedhas a constitutional right to pre abridged the accused’s nstitutional ‘Western, The Compulsory Process Clause, 73 sent "evidence" his unsedated de right to present evidence. 2 The court Mich. I. Rev. 71, 177 1974. meanortothejwy. 2lnthewordsofthe found the defense argument persuasive. 2Axnnesty International, Amnesty International Court of Appeals of Washing The court emphasized that in that juris Report, 1975-76 1976; Western, Confrontation wn,"[wjhen menial competence is at is- diction, it was well settled that "a statute and Compulsory Process: A U,4fied Theory of Evidence for Criminal Cases, 91 Han. L. Rev. sue, theright to offer testimony Wvolves must be construed, if fairly possible so as 5671978. more than mere verbalization."1 Citing to avoid notonly the conclusion that it is Washington v. Texas and Chambers v. unconstitutional }ut also grave doubts 3rn. Mississippi, the Supreme Judicial Court upon that score." ‘ 4Hackett it. Mulcahy, 493 F. Supp. 1329, 1335 of Massachusetts has similariy held that D.N.J.1980. the accused’s constitutional right to pre Conclusion sent evidence"includes the Øefendant’s 5Westem,supranote 1, at 79. right to offer4s demeanor in an unmedi The United States has long prided itself 6J4 cated state." on is adversarial criminal justice sys tem. Of course, if there is to be an .,ld. Although the direct effects of the consti adversary clash between the sides at an tutionalization of the right to present de evidentiaiy hearing, at the bare minimum 81d. fense evidence have attracted more each side must be assured the right to scholarly commentary, there is also an present to present evidence at the hear 91d. at 80. important indirect effect. It is a well rec ing .Thus, the right to present evidence is 10J4 ognized maxim of statutory interpreta arguably the most fundamental proce tion that when two statutory consiruc dural guarantee in an adversary systemof "a. tions are possible and one raises serious justice. In that light, it is even more re questions about the statute’s constitution markable that the Supreme Court walted ality, }e other interpretation is pre until 1967 to constitutionalize the 131d. ferred. Most American jurisdictions cused’s right to present evidence. It is now have evidence codes. In 1975, the even more remarkable that when the ‘41d. at 81. Federal Rules of Evidence became effec Court finally constitu chose to confer ‘51d. at 80. tive.1 Thirty-four states have adopted tional status on that right, the Court de evidewe codes patterned after the cided to derive the rightfrom the compul 161d. at8l. rules.’ Suppose that the defense offers sory process clause--a clause which had an itemof evidence under an ambiguous beenneglectedfor so long Uiqt t hadbeen ‘71d. statutory provision. Under one interpre dismissed as a "dead letter." 1SJ4 tation, the evidence is admissible; but under the competing construction, the The compulsory process guarantee can at 82. judge should bar the evidence. Given no longer be slighted. The guarantee has Washington and Chambers, the defense become the most important constitutional 201d. cannow argue that the former interpreta bulwark for the adversary system. Al 211d.;Clinton, The Right to Prevent a Defense: tion is preferable, because it moots the though the Warren Court fashioned the An Emergent Constitutional Guarantee in questionof whether the application of the right and the subsequent Courts have dis Criminal Trials, 91nd. L.Rev. 711, 7211976. statute to bar the evidence would violate mantled many of the other procedural ‘2Western, supra note 1, at 81-82. the accused’s constitutional right. That safeguards created by the Warren Court, argument succeeded in federal case, the Burger and Rehnquist Courts have ‘31d. at 84. United States v. Pohiot.’ In that case, enforced this rightwith surprising vigor. the defense attempted to introduce psy To paraphrase the Psalm, the constitu "1d. chiathc testimony. The prosecution ar tional guarantee which was gpce rejected 23j* gued that the testimony was inadmissable has become a cornerstone.1 under the Insanity Defense Reform Act ‘LId. at 87. of 1984. The defense countered that a EDWARD J. IMWJNKELRIED narrow interpretation of the Act, barring Professor of Law 2714. the testimony, would run afoul of the University of California at Davis 22‘a. defense’s constitutional ht to present Davis, California 95616 exculpatory evidence.1 The court 916 752-0727 1d. at9l. agreed with the defense that a narrow interpretation would rths&’sufficienp PROFESSOR IMWJNKELRIED, author of at 91. substantial" constitutional questions. nwnerous books, treaties, and articles on 3hld. On that ground, the court construed the evidence, is a Professor ofLaw at the Uni Act as allowing the admission of the de versity ofCalifornia, Davis , and serves on fense testimony. .NACDL’s.Governmenz Misconduct and ‘1d.

JUNE 1992 /TheAdvocate 89 Mid, at 91-92. 1987. ‘°tChurchwell’ stQra note 103, at 132. 351d. at 92. 721d. ‘061d.at 137: 361d. 7tUnited States v. Eurr , 25F.Cas. 30 IC/lid at 138. C.C.D.Va.1807 No. 14,692d; United States v. 3hld. Burr,25F.Cas. 187C.C.D.Va. 1807No. at 144. See United States v. Anderson, 872 14,694. F.2d 15081 lth Cir.1989. Jd. 74Western, supra note 1, at 101. ‘09Qturchwell supra note 103. 75Rurr,supra note 73, 25F.Cas. 30. "°Clinton sup-a note 21, at 756. 401d. Id at 33 ‘SeeE lmwinkelried,siçra note 45, atch.14. 411d. at 94. 77 Id. 112Seeldatç,ft8 cia. 78Burr, supra See Id. atchs. 10-12. 431d. note 73,25F.Cas.187. ‘14lmwinkeliied supra note 92, at 226. 44Clinton supra note 21, at 730. id. at 190,192. 1151d 4’See E. lmwinkelried, Exculpatory Lvi. 801d at 192. "by the time Jefferson’s response dence:The Accused’s Constitutional Right to arrived, Burr had decided to drop his request and 6C Whitebread & C. Slobogin, Criminal Pro Present Favorable Evidence 1-11990 proceed with the trial. The jury acquitted him a cedure: AnAnalysis ofCases and Concepts 424 fewdays later." Id. at 107. ed. 1986; Clinton, supra note 21, at 857. Western,supra note 1, at 95 8tWestem, Compulsory Process 11,74 Mich. L. "Davis ,‘. Alaska,415 U.S. 3081974 Chief at 96. Rev. 191,1931975, Justice Burger himself wrote the lead opinion. 48 Id. 1d. at 195. "8Olden v. Kentucky, 109 S.Ct.4801988. 83Western, supra note 4dld. 1, at 75. "9Western, supra note 81, at 306. - 5°ld. at 108citing the five opinions. ‘20Note Rock v. Arkansas: Hypnotically’Re freshed’ Testimony or Hypnotically "Manufac 511d. See Rule 214a, Model Code of Evidence bid. at 74. tured’ Testinwny?, 74 C,rn. L. Rev. 1361988. 214a. 81. Wigmore, Evidence Section 2191, at 68- ‘211n Chambers v. Mississippi, 410 U.s. 52See also Pettijohn v. Hall, 599 F.2d 476, 691. Mc Naughtonrev. ed. 1961; Western Con 2841973, the Court held that the nght entitled 4811st Cir.1979 "A core purpose of the sixth frontation and Compulsory Process: A Unified an accused to introduce technically inadmissible amendment is that the defendant has the same theory for Criminal Cases, 91 Han. L. Rev, hearsay evidence. In the trial court, the defense rights to introduce evidence as the prosecution" 567, 5911978. had argued that the judge should admit the evi Western, s’pra notel; at 96. dence under the declaration against interest cx 8"Washington v. Texas,388 U.S. 141967. . ception to the hearsay rule. However, the state TMid, at 97. trial ,judge noted that under state hearsay law, to ld. at 16-17 n.4. qualify as a declaration against interest the state 551d. ment must have been contrary to pecuniary or 89 Id. proprietary interest; penal interest did not suffice. at 14. In the lead opinion, Justice Powell frankly ac 1d. 9Oj knowledged that"[t]his materialistic limitation at 18-19. on the declaration-against-mterest hearsay ex ‘1tI. at 98. ception appears to be accepted by most States in 911d. at 14. their criminal thai process." id. at 299. 581d. at77 92knwinkelrjed, Chambers v. Mississippi. 40 In Rock v Arkansas, 483 U.S. 441987, the 9ld. at 100. See Commonwealth v. Elder, 452 U.S. 284 1973: The Constitutional Right to Court held that a defendant had a right to testi’ N.E.2d 1104, 1109-10 Mass. 1983"Since the Present Defense Evidence, 62 Mit. L. Rev. 225, even though he had to have his memory hypnoti defendant was able to establish bias without the 2411973. cally enhanced to revive her memory of the d.e proffered evidence, this case differs markedly tails of the shooting rncident in question. The from..Davi, v. Alaska....ln [that] case, the intro People v. Scott, 52 fll.2d. 432, 288 N.E.24 case arose In ajunsdiction which followed a per duction of thepriorpending prosecutions orprior 4781972. Se nile barring the admission of hypnotically records was essential, since there was no other refreshed testimony. Casenote, The Admissibility way in which the bias of [the] witness could be !d. at 439, 288 N.fL2d 482. of Hypnottcaly Refreshed Testimony: Rock v. elicited". Arkansas, 30 WC.L. Rev.573, 5741989. At the 95Chambers v. Mississippi, 410 U.S. 2841973. time of the Supreme Court’s decision, the per Se 601ct. at 99. rule may have been the majority view in the !d. at 302. United States. Id. at 594. 6tClinton, supra note 21, at 736. ‘22lmwinkelried, Constitutional and Statutory 62Western, supra note 1, Theories for the Admissibility of Defense Evi at 100. dence, in 1 Seventeenth Annual Defending Criminal Cases: A Practical Look at Current 1d. at 99. Developments in Criminal Law 419, 422P.L.1. 1979. 64Clinton supra note 21, at 717, 727-28, ‘°°Id. ‘23Note, Defendant v. Witness: Measuring Con 1d. at 717, 728. frontation and Compulsory Process Rights tel - 16 Am. Jur.2d Constitutional Law Section Against Statutory Communications Privileges, id. at 717. 31964. 3OStan. L. Rev. 1173, 11951980. 102 671d. at 728. 16 CJ.S. Constitutional Law Sections 86- ‘Hill, Testisnoniol Privilele and Fair Trial, 80 87,94,107-081984. Colum. L. Rev. 1173, 11951980. ld. at 727. ‘°3Qwxchwell,The ConsfitutionalRight toPre Western, supra note 86, at 626. 69 Id. sent Evidence: Progeny of Chambers v. Missis sippi,19 CHin. L. Bull. 131,1321983. Note, The Constitutionality of an Absolute 7°Id. Privilege for Rape Crisis Counseling: A Crirni. 1041ntwinkelried, supra note 92,at 241. nalDefendant’s SixthA,nendment Rights Versus 7tPennsylvania v. Rite/tie, 480 U.S. 39, a Rape Victim’sRi&ht to Confidential Therapeu 55n.11. tic Counseling, .30B.C.L. Rev. 411, 447-

JUNE 1992 IThe Advocate 90 r

550989. t2?Id Read The ‘lrnwinke1iied, Demeanor Impeachment: Law arid Tactics, 9 Am. 5. Trial Ad. 183, 189- 921985. ‘-People v. Hardesty, 362N.W.2d. Whole Story 787,795 Mich.App. 1984.

Congress shall, make no law respecting an establish I ment of religion. or prohibiting the free exercise thereol. or abridging ihe re Pray,336 A.2d 174, 177Vt.1975 "III freedom of speech, or of the press. or the right or he people peaceabis fact,it may well have been necessary, in view of to assemble, and to petition the Government for a redress or grievances the critical nature of the issue, to exjose the jury to the undmgged, unsedated Gary Pray.". A well regulated Militia, being necessary to the securits or II * free state. the right of the people to keep and hear Arms, shall not he ‘32Comn,onwealth v. Low’aine, 453 N.E. 2d in fringed. 437Mass. 1983; State v. Maryott, 492 P.2d 239Wash. App.1971. No SoldIer shall, in time of peace hequartered ii’ III * house, without the consent oft he Owner, nor in time or sr,i r l i.i t ‘3tId. at 132, 492P.2d at 242. rita n ncr to be p ru-sc ri bed by law ‘34Lourine supra note 132, at 442. The nght of the people to be secure ritheirperns * houses, papers. and ellcxis. against unreasonable searches md sei,ures tGun South, Inc. v. Brady,711 F. Supp. 1054N.D. Ala.1989;S.E.C. v. Pacific Bell, shall not be violated, and no Warrants shall issue, hut upon probable 704?. Supp.1 1D.D.C. 1989. cause. supponed by Oath or alrirmation. and particularly desc rilisrig the place.to be searched, and the persons or things to he seiiecl ‘R. Carison, B. Iniwinkelried & B. Kionka, Materials for the Study of Evidence 232d eat. f No person shall be held to answer loraap:til. iii V. otherwise inlamous crime, unless on a presentrhc’nt or inclk t nient ol a Grand lup’. excepr in cases arising in the land or naval forces or in the ‘371d. at 23-24. Militia, when in actuar service in time of War or public danger nor shill any person subject for the same offense twice in t38 be In he put teopails ol United States v. Pohiot, 827 F. 2d life or limb, nor shall be compe lied in any cii mi ntl case to he "itness 889,9003d Cir. 1987. against himselr. nor he deprived ol life, liberty. or properts 0 ithotit itue process of law, nor shall pris’ate property he taken br public use scithritit ‘"Id. just compensation

‘401C1. See also United States v. Benvensite, 564 In all criminal prosecutions, the accused shatl enjoy the F. 2d 335,340.429th Cir. 1977. VJ * right to a speedy and public trial, by an impanial jury of the Stale and district wherein the crime shari have been committed: which district shari ‘4tCommonwealth v. Joyce, 415 N.E.2d have been previously ascertained by law, and to be informed or the 181Mass. 1981. nature and cause or the accusation, to be conlronted with the sitnesses am against him: to have compulso’ process for obtaining ‘sit nesses in his ‘42Id. 184. favor, and to have the assistance or counsel for his delense ‘431d. at 185n.5. In Suits at com mon law, ss’here the value * shalr exceed twenty dottars. the right of trial he shall he preserved ‘44See generally S. Landsman, Readings on Ad q iury versarioi Justice: The American Approach to and no fact tried by a jury shall be 01 he nvise re-examined in ins Co art Adjudication ch. 11988. the United Srates, than according to the rules ol the coninlon ass ‘45Westem,siqra note 81, at 195. 11111 Excessive bail shall not be required, nor VIII. lines imposed. nor cruel and unusual punishments inflicted Psa1ms, CXVIII, 22"The stone which the builders refused is become the headstone of the ft The enumeration in the Constitution olceu,io corner.’. IA. rights shall not he construed to deny or disparage others retained is t lie people.

y The powers not delegated to the United States by the A. Consl it ut ion, nor prohibited by it to ‘he States. are reserved to t lie St it es respectively. Or to the people

You’ll find 10 ways to say You’ve Got That Right!

Read The Bill of Rights to know your tights

tb,op,,iii,o.’iprc,,,id hiwi.,d,,ii,,i.,,it,&’ii,ih,’o,,.irOiCit’,fl’l.,rirXiflwiri!.,ii, By Signe Dietrichson University of Florida

JUNE 1992 IThe Advocate 91 HAPTER 7

Constitution of The ‘United States i4mendment ‘J2

fAljir shaft any person be subjectfor the same offense to be twice put injeopardij of 41e antltTim.fi.

Constitution of tlcentuckcy Section 13

Voubtejeoparily; 9tLo personshaft for the saint offense, be twice put injeopardy of 4fe or limb.

JUNE 1992 IThe Advocate 92 DOUBLE JEOPARDY

Rob Sexton

The United States Constitution and the ground, the protection once provided by Blockburger, and the two charges may Kentucky Constitution both contain the common law pleas of a.uterfoits ac not be brought against one defendant. guaranteesprotecting citizens from being quit and auterfoits convict remains the twice placed by the government, for the foundation of the protection which the The elements oftheft by unlawful taking, same offense, in jeopardy of life and Court is now willing to discover in the however,require proof that the defendant limb.1 Both of these Double Jeopardy Federal Double Jeopardy Clause. unlawfully tookor exercisedcontrol over provisions protect citizens from being the property of another with ient to reprosecuted for an offense after prior B FEDERAL PROTECTIONS deprive the true owner thereof. Theft conviction or acquittal for the same of AGAINST MULTIPLE requires the proof of several facts not fense; and bothprohibitmuijiple punish PUNJSHMENTS IN THE SAME required in a prosecution for burglary. ments for the same offense. Both provi PROCEEDING Therefore, under Bloclcburger, a defen sions, moreover, are rooted in protections darn may be prosecuted for boththeft and which existed at common law, and both The pleas of auterfoits acquit and auter burglary. provisions have developed rather slowly foits convict only protected against rep from their common law beginnings. rosecution for already adjudicated of Despite the Blockburger rule’s clarity fenses. One way in which Federal law and ease of application, the rule may However, in the past few months, some goes farther than the common law pleas fairly be criticized as wooden and inflex thing of a revolution has been brewing in did is the recognition by federal law of ible. However, this criticism can be lev Double Jeopardy jurisprudence, with the defendant’s right not to receive mul eled against any rule clear enough to both Federal and Kentucky Courts mak tiple punishments for?e same offense in produce predictable results. A more seri ing new developments in this one small the same proceeding. The protection of ous criticism of the Biockburger rule is area of the law. The purpose of this article this policy is the purpose of the famous that it is unduly deferential of the legisla is to examine these new developments of BlockburgeA rule, designed by the Court ture. Double Jeopardy law by the Federal and to detennine whether 2 charges actually Kentucky courts, and to illustrate the con repr9sent the same offense under the It has even been held that the Double trasts between Federal and Kentucky law. Jeopardy Clause does no more than pre Double Jeopardy law. Toplace these new vent the sentencing court from imposing developments in context, certain aspects The Blockburger rule is simply stated, greater pwlishment than the legislature of already-established Double Jeopardy and is not unduly difficult to apply. The intended. This view ‘of the Double law first will be set forth. rule requires that each statute under Jeopardy Clause reduces the constitu which the defendant is charged must re tional guarantee to a mere rule of statu quir1 proof of a fact that the other does tory construction. It places a right per L FEDERAL DOUBLE not, If this test is satisfied, then, as a petually inherent in the people at the JEOPARDY LAW general rule, no objection under the Dou mercy of a political branch of govern ble Jeopardy Clause will lie, even when ment, and it allows the state to make even there is substantial overlap in tif proof the most banal transactions heinous by A THE HISTORICAL offered toestablish both crimes. the application of clever draftsmanship to BACKGROUND the penal code. For example, in Kentucky, the elements The English common law, as it existed at of criminal trespassin the first degree are In sum, the federal protection against the time of the adoption of the Constitu established by proof that the defendant multiple punishments in the same pro tion, prohibited the reprosecution of a knowingly entered or remained unlaw ceeding has traditionally been only as defendant for the same offense after a fully in a building.’° Burglary in the third strong as Congress and the General As prior conviction or acquittal; and if the degree requires proof that the defendant sembly have wanted it to be. Countless Crown attempted such a reprosecution, knowingly entered or remained unlaw thousands in our jails and prisons will be the fully in building with intent to commit happy to assure the curious inquirer that defendant could terminate the pro t protec ceedings by a plea of auterfoits acquit or a crime. ‘Proof of burglary therefore re neither legislaturehas decided the auterfoits convict.3 These pleas protected quires the prosecution to show a factnot tion against multiple punishments to be against reprosecution for prior offenses required in a prosecution for criminal very strong at all. already adjudicated, and did not bar trespass, namely the intent to commit a prosecution for all separate charges aris crime. But proofof criminal trespassdoes ing from the same factual course of con not require the prosecution to show proof duct.4 Although development has been of a factnotrequired in a prosecution for made from this common law back- burglary. Therefore burglary and crimi nal trespass are the "same" offense under

JUNE1992 IThe Advocate 93 C FEDERAL PROTECTIONS solved in the defendant’s favor in an ear tletyof Grady is its major flaw. The rights AGAINST REPROSECUTION lier criminal proceeding For example, of the people niust be forcefully stated, FOR A PRIOR OFFENSE in Ashe v. Swenson, 6 poker playerswere and not, as here, couched in terms as robbed by 3 or 4 masked men The obscure as a Zen Koan. But let us adopt The guarantee againstreprosecution after defendant was found not guilty of the the method of the Court, and first focus a prior determination of guilt or inno robbery of 1 of the players. Six weeks on what Grady does not mean. cence is the aspect of Federal Double later, the defendant was convicted of the Jeopardy law with the strongest historical robbery of another player. The Supreme’ First of all, Grady does not mean that the roots, and it is the aspect which has re Court of Missouri affirmed. The Court Blockburger tesi has been abandoned in ceived the most stress by the Court. reversed, reasoning that the first trial re the successive prosecutions field. To the There is much sense to this focus beyond solved the issue of whether the defendant contrary, a second prosecution of a de a mere attachment to history, because of had been presentat the robbery, and that, fendant remains barred if the seco9 the dangers inherentin allowing multiple having been once resolved, this issue charge fails the Blockburger test. prosecutions. could not be relitigated. It is important to Grady, however, requires a second ana note, however, that the rule of As/ic will lytical step beyond Blockburger. The dif There are at least two major policies only apply when it is clear why the jury ficulty lies in reducing that second step to which the prohibition against multiple in the first proceeding acquitted the de words. prosecutions is designed to foster. The fendant. Because criminal trials end in a first is the policy against allowing the general verdict, such situations will be For Grady also does not adopt a "same Government, with all its resources and rare - evidence" test, which would bar the state power, to subject a citizen to the expense, from using evidence in a second prosecu anxiety, insecurity and ordeal of a crimn& 3 TUE RULE OF GRADY tion which had already been used again nal proceeding more times than one. the defendant in a former prosecution. The other policy is groundedin a concern The Court has recently discovered an The Court points out that the touchstone for truth, and reflects the realization that other area in which the Blockburgerrule of Grady is the conduct to be proven at if the Government were allowed to it- must be relaxed; holding that a sub the second prosecution, not thevidence hearse its presentation of proof over the sequent prosecution is barred, if, to estab to be used to prove the conduct. So may course of successive prosecutions, the lish an element of the offense charged, we then assume that Grady adopts a chances of reaching an qyjust result the Government will prove conduct for "same transaction" test, which mandates would be greatly increased. which the 0efendant had already been joinder of all charges based oq a single prosecuted. For example, in Grady v. transaction? No, we may not. 6 Rather, 1 THE HARRIS EXCEPTION Corbin, an intoxicated motorist caused the holding of Grady appears to be this: an ac9ident in which 1 person was when the State has once punished a de Because of the grave dangers of injustice killed. Fourteen days later, the defen fendantfor negligently driving a car, the in the area of multiple prosecutions, the dant pleaded guilty to PUT, and the pre State can never thereafter use the same Court has relaxed theBlockbifrgerrule in siding judge accepted the plea. Unbe negligent conduct as a basisfor the pun determining the scope of protection the knownst to the judge, the local prosecu ishmentof the same defendant. Double Jeopardy Clause provides in this tor’s office was planning to charge the area. For example, in a situation where defendant with homicide, because of the The Court’s rejection of the "same evi conviction of a greater crime requires death caused by the accident. dence" test notwithstanding, the Court’s proof of a lesser, underlying crime, the holding in Grady has an obvious impact Federal Double Jeopardy Clause bars Despite the defendant’s prior plea to the in the field of evidence; for the only way reprosecution for the lesstr crime after offense of DI’!, the prosecutor went in which the state can "use" a defendant’s conviction of the greater.’ In Harris v. ahead and obtained a negligent homicide already adjudicated conduct against him Oklahoma, a companionof the defendant indictment against the defendant. The at a second proceeding is by introducing shot and killed a liquor store clerk vhile prosecutor laterfiled a Bill of Particulars evidence of that conduct against him. the 2 men were robbing the store.1 The stating that he would wove the defen Therefore, it is difficult to imagine any defendant was tried and convicted of fel dant’s negligence by demonstrating that evidence which would be relevant in a ony-murder, which required proof of the the defendant was driving while intoxi first proceeding which would be admis underlying robbery. However, at his first cated. sible against the defendant at a second thaI, the defendant was nt charged with proceeding. But the rule of Grady ap robbery. The defendant moved to dismiss, claim pears to go farther than the "same evi ing that the homicide indictment was dence" test. For if the government uses Nevertheless, a second information was barred by the federal Double Jeopardy only some of its evidence of the defen laterbrought against the defendant for the Clause. The motion was overruled, and dant’s conduct against him at the first same robbery used to establish the defen the defendant sought the Writ ofProhibi trial, the government still may notuse its dant’s guilt for the prior charge of felony- tion from the Supreme Court of New fresh evidence of the same conduct murder. The defendant was convicted in York, Appellate Division. The Writ was against the defendant at a second trial. this second proceeding, and the Okla denied. The defendant then appealed the homa Court of criminal Appeals af denial of the Writ of the New York Court The Court’s rejection of the "same tps finned. The Court, ina briefper curiam of Appeals, which reversed.22 The state action" test, although not surprising, is opinion, reversed, holding that the defen then sought certiorari, which was similarly confusing. Grady clearly does dant’s second conviction was barred by granted, and the Court affirmed the Court not mandate that all charges against the the Double Jeopardy Clause. of Appeals. defendant based on one transaction be joined in one proceeding. Severance is 2 COLLATERAL ESTOPPEL The Court’s opinion in Grady is clearly a allowed if proof of the charges in the compromise. The opinion discusses at second proceeding will notinvolve proof The Blockburger rule has also been re length what the rule of Grady does not of the same conduct treated in the first laxed in situations covered by the rule of mean, to the extent that the Bench and proceeding. But what, after all, is "con collateral estoppel. Collateral estoppel Bar are left with little guidance as to what duct?"Negligently driving a car? Negli prevents the relitigation of issues re Grady does mean. This excessive sub- gently driving a car while possessing co

JUNE1992 IT/ic Advocate 94 caine? Negligently driving a car with a B APPLICATIONS OF suspended operator’s license? II. KENTUCKY DOUBLE INGRAM JEOPARDY LAW The answer to the above-mentioned hy 1 WALDEN V. COMMONWEALTH potheticals appear to be thaI, in a second proceeding for possession of cocaine, the A KENTUCKY PROTECTION Walden v. Commonwealth is an appeal state may notuse evidence of the defen AGAINST MULTIPLE from ajudgement of the Madison Circuit dam’s negligently driving a car. Either PUNISHMENT FOR THE court convicting the appellant both of such evidence would be irrelevant, or it SAME OFFENSE wanton murder and of DI’!. One of the would be barred by the rule of Grady. [A points of error raised on appeal was that subsequent procution for driving on a Federal double jeopardy law applies to this dual conviction violated the rights suspended license would appear, on the the stçs through the Fourteenth Amend granted the accused by Section 13 of the other hand, to be completely barred by ment. Therefore, states may not pro- Kentucky Constitution. the rule of Grady..] vile their citizens less double jeopardy protection than is provided by federal The Supreme Court, citing Ingram, Thus, 3 points need to be remembered. law. At any rate, much federal double agreed, and reversed the appellant’s con The rule of Grady will make severance jeopardy law h%been adopted in Ken viction forDI’! in aper curiam opinion. unattractive to prosecutors, because it tucky by statute. However, the double The Court reasoned that, had the Com can restrict the type of evidence utilized jeopardy protection provided by state monwealth attempted to prosecute Wal against the defendant in subsequent pro constitutions may freely exceed the scope den for murder and DI’! in successive tzedings. Thus, the rule of Grady also of theprotectionprovided b federal law. prosecutions, the second prosecution severely restricts the type of charges Thanks to a recent opinion of the Ken would have been barred under Grady v. which can be brought in subsequent pro tucky Supreme Court, which was an Corbin. But to allow the Commonwealth ceedings. Finally, the rule of Grady nouncedby Justice Combs, Kentucky has to obtain by one proceeding that which it makes "conduct" a term of art with a joined that number of states which has could notobtain by two would be to make rather imprecise definition. Therefore, indeed exceeded the scop of federal the rights of the people 5ependant upon nearly every time the prosecution elects doublejeopardy protection. ° prosecutorial discretion. Such a result severance, the defendant is presented would be absurd. with a potential issue for appeal. As pointed out above, in a situation where all charges against a defendant arejoined Accordingly, the Court held that Section B SUMMARY in one proceeding, the concern offederal 13 of the Kentucky Constitution not only law is simply that the defendant not re incorporated the rule ofGrady v. Corbin, When all charges against the defendant butqie accused are joined in oneproceed ceive multiple punishments for the same 6 are joined in one proceeding, the Federal offense. The scrutiny of the federal courts ing. Because, in the case at bar, the Double Jeopardy Clause requires only will be fully satisfied in such a situation prosecution proved the defendant’s driv that the defendant not receive multiple as long asall the charges pass the Block- ing under the influence in order to estab punishments for the same offense. This burger test. However, the advocate must lish the elements of wanton murder, the right of the defendant is deemed fully remember that, in the joinder situation, prosecution was therefore precluded satisfied if the charges against the defen the Blockburger test is no longer suffi from ‘using proof of the sam conduct to dant meet the Blockburger test. cient to satisfy the scrutiny of the Ken obtain a conviction for DUL tucky courts. When the charges against the defendant 2 MARSHALL V. COMMON are severed into different proceedings, For example, in Ingram v. Common WEALTH the Blockburger ‘test must still be satis wealth, the defendant was charged with fied, or subsequent prosecutions will be selling marijuana to a minor and with Marshall v. Commonwealth concerns barred. But even when the Blockburger trafficing within 1,000 feet of a the conviction of the appellant for all of test is satisfied, the Gradytest must still school. The charges were joined in 1 the following crimes: complicity to com be met. Grady technically allows sever- proceeding and resulted in the defen mit arson in the second degree, complic alice, but it makes severance, in the typi dant’s conviction on both charges. The ity to commit burglaryin the thirddegree, cal case, unattractive to the government, Supreme Court reversed the conviction, complicity to commit theft by unlawful because it Exults the conduct which may reasoning that, although the Blockburger taking, and complicity to commit3çrimi- be proven at second proceedings, and it test was satisfied by the charges, the nal mischief in the first degree. On makes the scopeof the term "conduct" an Blockburger test itself was insufficient to appeal, the appellant raised the point that issue for the defendant to appeal. protect the rights guaranteed by Section his convictionfor complicity to arson and 13 of the Kentucky Constitution. complicity to criminal mischief violated Even when the .Blockburger and Grady his rights notto be placed in double jeop tests are both met, the advocate should When adefendantis charged withseveral ardy. inquire if a supplemental principle offed offenses in 1 proceeding, pie Block- eral double jeopardy law, such as collat burger testmust still be met.3 However, The Court agreed, and reversed, reason eral estoppel, will apply to the case at the Court now supplements the Block- ing that the conduct conviciting the ac hand. Having fully applied federal law to burger test with a "single impulse" test. cused of arson was exactly the same as the case, the advocate should next turn to’ This’ test provides that, when a single that used to obtain his conviction for Kentucky double jeopardy law to see if impulse and single act of the defendant criminal mischief. To make this deternii its quite different mandates are being produce but a single set of consequences, nation, the Court looked to the instruc met. the defendant has committed only 1 of tions the trial court delivered to the jury. fense, even if his conducttechjica1ly vio Having discovered that the two convic lates several criminal statutes. tions rested onproof of the same conduct, the Court then held that the case fell within the scope of the Ingram rule, which barred prosecution fortwo techm cally distinct offenses bases on the same

JUNE1992 IThe Advocate 95 impulse, act and consequences. It appears that Kentucky Double Jeop quences, could usefully be extended by ardyjurisprudence under Ingram is idem analogy to finish off what remains in 3 MAHONEY V. COMMONWEALTH tical to federal lawunder Grady, withthe Kentucky of the dual sovereignty doc exception that Kentucky applies to the trine. The advocate should, therefore, be Grady rule both to multiple prosecution alert to the possibility of making an argu This case involves an appeal of a judge of the same defendant are joined in one ment based on Ingram in a thai sover ment conviction the accused of 27 proceeding. The fact that the Gradylln eignty situation. counts of second degree manslaughter, gram standard blurs thebright line test set 12 counts of first degree assault, 27 forth in Blockburger appears certain to B POINTS OF GROWTH counts of first degree wanton endanger confuse the lower courts as has already ment, 14 counts of second degree wanton been seen in Mahoney it. Common The most obvious way in which Ken endangerment and one count driving wealth. tucky double jeopardy law is likely to under the influence of alcohol. grow in the near future is the application The Gradyllngram standard is based of the Ingram rule both to the thai sover On appeal, the accusedargued that Grady partly on Blockburger’s mechanical cal eignty situation. Beyond that, it is en v. Combth required that his DUT convicton culus, but it requires courts to go further tirely rational to hope that Kentucky will be reversed, because the accused’s driv and make a sensitive evaluation of the move to a clear adoption of the "same ing under the influence was convicted. facts of the particular case. This required transaction" view of douDle jeopardy, The Court of Appeals disagreed, but re more ofjudges, and also requires more of and furthermore will dispense with the versed anyway. the bar. For the now standard is a call for dual sovereigntydoctrine altogether. It is passionate advocacy, which is always to certain, that after 2 centuries of slow The court correctly reasoned that Grady be preferred to a bland application of growth from their common la* roots, the v. Combin does not apply to situations, highly technical legal rules. Federal and Kentucky double jeopardy like the case before it, tre all charges protections are finally beginning to come are joined in one proceeding. Accord C SEPARATE SOVEREIGNS into their own. Advocates for the accused ingly, the court held that Grady did not now have the opportunity to help this control. The United States Constitution allows process along. the states to prosecute a defendant after a However, the court went on to conclude prosecution by the federal government or ROBERT F. SEXTON that Ingram also did not control. This another stae for the exact same act of the Assistant Public Advocate conclusion, so obviously erroneous, was defendant. It important, however, to DPAIPulaski, McCreaxy, Wayne, Russell, is Rockcastle based on the court’s disinclination to re remember that Kentucky is under no ob P.O. Box 672 ceive Ingmam as mandatory precedent ligation to allow reprosecution for a Somerset, Kentucky 42502 "pending further guidance by the Su crime already prosecuted by federal or 606 679-8323 preme Court." The court then went fur separate state authority; and, in fact, Ken ther into the realm of unreason by claim tucky law limited the applitjability of the FOOTNOTES ing that the Supreme Court’s opinion in dual sovereignty doctrine.4 Walden v. Commonwealth, supra.. was 1United States Const. Amend 5; Kentucky Con based on reasoning similar tohat used in Kentucky currently bars reprosecution staution Section 13. Burnette v. Commonwealth. when a former prosecution by the federal 2North Carolina v. Pearce, 395 U.S. 711, 89 government or another stateresults in an S.Ct. 2072, 23 LJ&L24 656 1969; Jordan v. In truth, it is difficult to imagine two cases acquittal, a conviction not set aside, or a commonwealth, 703 S.W.2d 870 1986. having less in common than Bumnette and dismissal for insufficient evidence, when 3For a discussion, see Grady v. Corbin, 495 U.S. Walden. In Bumnette, the accused, hav a subsequent Kentucky prosecution 110 S.Ct. 362, I® L.Ed.2d 548, 568 ing first plead guilty to DUll, was then would be for conduct already prose iO SCALIA, J., DISSENTING. conviced of assault in a separate prosecu cuted.43 The 2 exceptions to this general tion based on the same facts; and he urged rule are: 1 when the offenses involved in 41d. on appeal that this result violated the the 2 prosecutions are distinct under the 5See Gaviers v. United States, 220 U.S. 338,31 double jeopardy clause. The High Court Blockburgertest, and 2 whenthe offense S.Ct. 421, 55 L.Ed. 489 1911. Note that in disagreed, but reversed the judgment on involved in the subsequent Kentucky Gilbert v. Commonwealth, 29 Ky. 184 1831,,it was held that the legislature did have the power other grounds. It goes without saying prosecution was not consurnmedwhen to prescribe multiple punishments for the same that a contrary result on the doublejeop the former prosecution began. offense. ardy claim would today be required by it. Combin, which, relitigation when an- 6fllockburRer v. United States 284 U.S. 299,52 Grady as already Kentucky also bars 180,16 L.Ed. 306 19325. noted, did not control the case at bar in other sovereign has made a factual deter S.Ct. Mahoney. mination inconsistent with any fact nec 7flrown v. Ohio 432 U.S. 161,97 5.0.2221,53 essary to a conviction4jn a subsequent L.Ed.2d 187 th77. But the Court of Appeals used Burn ette, Kentucky prosecution. In short, Ken 8lannelli v. United States, 420 U.S. 770,785,95 although it is off point and no longer tucky applies the doctrine of collateral 5.0. 1284,43 L.E4.2d 616 1975. states good law, as support for the propo estoppel to bar litigatii of issues de sition that a test like that of Blockbu.rgem cided in another forum. should be used to decide the case before it. It then incorrectly applied the Block- One wonders if even these traces of the ‘°KRSSI1.060. burger rule, by holding that the rule re dual sovereignty doctrine will remain in "KRS 511.040. quired reversal of the appellant’s DUI Kentucl9’ after Ingram v. Common conviction. The result in Mahoney is wealth.4 Ingram, asnoted above, only is i2}c1 511 030 quite correct, but the reasoning used to binding in a situation where all charges ‘3Missow’i it. Hunter 495 U.S. 359. 103 S.Ct. reach it is most unconvincing - against a defendant arejoined in a single 673, 74 L.Ed.2d 535 1983. indictment. But the rule ofIngram, which 4 SUMMARY forbids multiple charges being brought 14Green it. United States, 355 U.S. 184,785.0. for the same impulse, act and conse 221,2 L.Ed.2d 199 1957.

JUNE 1992 IThe Advocate 96 t5Tibbs v. Florida, 457 U.S. 31, 102 5.0. 221 1, 72 L.Ed.2d 6521982. The powers not delegated to the t6Harris it. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912,53 L.Ed.2d 1054 1977. United States by the Constitution, ‘8Ashe it. Swenson 397 U.S. 436, 90 S.Ct. 1189, nor prohibited 25 L.Ed.2d 469 170. by it to the States, are

2iGrady it. Corbin, 495 U.S. , 110 S-Ct. reserved to the 362, 119 L.Ed.2d 548 1990. States respectively, or/

22Corbin it. Hillary, 74 N.Y.2d 279,543 N.E.2d to the people 714 1989. " meatX 23109 L.Ed.2d at 563. We should l09 L.Ed.2d at 564. consider that we are 26109 L.&L2d at 566, n.15. providing a 271dn15 Constitution Benton it. Maryland, 395 U.S. 784, 89 5.0. for future 2056,23 L.Ed.2d 707 1969. generations USING THE KENTUCKY See KRS 505.020 a seq. CONSTITUTION and not 30lngram it. Commonwealth, Ky., 801 S.W.2d Read and study your Constitution, sim 321 1990. merely ply because the United States Supreme 31ld See also KRS 218A.9905 and KRS Court has said "this is the Law," jfit 218A.99016. for the clearly violates the law or the Consti tution, raise the question. 32Note that the Dlockburger test is codified at circumstance KRS 505.020. of the Maybe someday, a Judge will say, 8o1 S.W.2d at 324. "Wait a minute. I have no right to do this. My rights and duties are spelled Walden it. Commonwealth, Ky., 805 S.W2d. out in the Constitution, and nowhere 1021991. can Ifind it." 805 S.W.2d at 106. So whether an appellate or trial lawyer, 36805 S,W,2d at 106-107. constantly remind the Judiciary of their 3, function, because if Judges don’t stop S,W,2d at 107. it, Lord knows where it is going to go. Marshall it. Co,n,nonwealth, Ky., S.W.2d No. 90-SC- 185- MR, TCI1E PUB- We’re the ones entrustedwith thepres ervation of the Constitution. True, all theother officials have to take a similar Mahoney it. Commonwealth, Ky., Ann., S.W.2d 1992 No. 90- CA- 545- Mi, oath, but we’re spelled out twice in the T5BE PUB1]M{ED. Constitution, and it’s up to us to make sure that we, as the Judiciary Branch Rwneue it. Commonwealth ICy., 284 S.W.24 654 1955. make the Legislative Branch slay within the parameters of the Constitu 4tfiarthjy it. Illinois 359 U.S. 121,79 S.Ct. 676, tion. This is the law we constitute. 3 L.Ed.2d 684 195; but note that the vitality of the dual sovereignty doctrine is questionable af I challenge you to resort to these docu ter Grady it. Corbin, although it does appear to have survived Benson it. Maryland, n.25, supra. ments, the Federalist papers, the Con stitution, andthe writings from the phi ‘2KRS 505.050. losophers from whence the Founding Fathers drew, to show any basis for the 43KRS 505.0501. rule that what our Supreme Court says istheLaw,even itisinconflictwith our Constitution. I submit to you it 45ICR5 505.0502. doesn’t.

"Smith it. Lowe, Ky., 792 &W.2d 371 1990. DAN JACK COMBS, Kentucky Su Note that the Smith Coun applied the doctrine of preme Court Justice, then Courtof Ap collateral estoppel even though it is unclear ex actly why the federal jury acquitted the defen peals Judge, at the October 20, 1986 dant. Appellate Seminar Luncheon. ‘80i S.W.2d at 321.

JUNE 1992 IThe Advocate 97 HAPTER 8

Constitution of‘The ‘UnitedStates

Rihts ofAccused? In all criminalprosecutions the accused shall envoy the rigiit to a speedy that by an iinpartialjunj of the State and district wherein the crime shall have been committed, which district shall rave been previously ascer tainedby law.

Constitution of Centucky

Section 7

Right of ‘Trial by Jury: The acient mode of trial byjury shall be heldsacred; andthe right tire reof remain inviolate, subject to such modifications as may be autlwrizedby this Constitu tion.

Section 9

Truth may be given in evidence in prosecution for publishing matters proper forpublic information; jury to try law ant facts in Iibetprosecutions. Inprosecutionsfor thepublication ofpapers investigating the official conduct ofofficers or men in public capacity, or where the matterpublishetfisproperfor public information, the truth thereof may be given in evidence; an in allindictmentsfor Iibelthejuryshall have the right to determine the law and thefacts, under the direction of the court, as in other cases.

JUNE 1992 ITS Advocate 98 "Take It To The Box" or The Right To Trial By Jury

Rebecca fliLoreto

where the U.S. Supreme Court held that Our Civilization has decided, and very justly citizens in state criminal proceedings And it seemeth to me, that the law in this case decided, that determining the guilt or inno delighteth herselfe in the number of 12; for cence of men is a thing too important to be were entitled to ajurythal. ‘The deep there must not onely be 12 jurors for the trusted to trained inert, It wishes for light commitment of the Nation to the right of tryall of matters of fact, but 12 judges of upon that awful matter, it asks men who jury trial in serious criminal cases as a ancient time for tiyall of matters of law m know no more law than I know, butwho can defense against arbitrary law enforce the Exchequer Clamber. Also for matters of feel the things that I felt in the juiy box. ment qualifies for protection under the state therewere in ancient time twelve Coin When it wants a library catalogued, or the Due Process Clause of the Fourteenth sellors of State. lie that wagesh his law must solar system discovered, or any trifle of that Amendment, and must therefore be re have eleven others with him, which thirike kind, it uses up its specialists. But when it specS by the States." Duncan v. State he says tme. And that number of twelve is wishes anything done which is really seri Louisiana, 391 U.S. 145, 88 S.Ct. much respected in holy writ, as 12 apostles, ous, collects twelve of 12 stones, 12 tribes, etc. it of the ordinary men 1444, 1451, 20 L.Ed.2d 491, reh.den. standing mund. The same thing was done, if 2270,202 LEd.2d I remember right, by the Founder of Qiristi 392 U.S.947,88 S.Ct. -COKE, I The FirsiPart ofthe Inst ituSe anity. 14121968. TheSupreme Courtwenton oftheLaws ofEngland;A Cornmeauary to explain that "The guarantees of jury Robert Constitw Upon Littleton Philadelphia: -CHESTERTON, Gilbert IC, Tremendous trial in the Federal and State H. Small, 1853, p. 155a. Trqies: The Twelve Men, New York: Dodd, dons reflect a profound judgment about Mead and Company, 1922, pp. 86-87. the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in quired to follow the instructions of the ‘ order to prevent oppression by the Gov courtonall matters of law." Themajority with the One of the truest tests of our skills as ernment.... Providing an accused hi Doughertz went on to hold that the public defenders arises when our clients right tobe tried by ajury of his peers gave defense had no right to inform jurors of tellus"Jwanttotakeittothebox." That him an inestimable safeguard against the their power to nullify. Id., 1130-1137. and box being one which holds twelve or in corrupt or over zealous prosecutor against the compliant, biased, or eccen In a dissenting opinion Chief Judge district court - six jurors. tric judge." Duncan v.Stateof Louisiana, Bazelon disagreed with the majority," The right trial july is an integral supra, 88 S. Ct. at 1451. That safeguard "The doctrine [of nullification permits to by most evident in cases of jury criminal component of American jurisprudence. is perhaps the jury to bring to bear on the The Stamp Act October 19, nullification. processa sense offairness and particular Congress of rules 1765, passed a resolution which stated ized justice. The drafters of legal "that trial jury is the inherent and This right,of the jury to nullify dates back cannot anticipate and take account of by to William conduct invaluable right of every British subject in Anglo-Saxon common-law every case where a defendant’s m these colonies." Penn, the Quaker tried for causing a riot is ‘unlawful’ but not blameworthy, any by preaching in public after his church more than they can draw a bold line to In our Declaration ofIndependence the had been closed by the Conventicle Act. mark the boundary between an accident St.Tr. - spokes founders objected to the King "depriving The Trial ofWilliamPenn,6How. and negligence. It is thejury as 1670. The judge in Penn’s case, values us in many cases, of the benefits of Trial 951 man for the community’s sense of by Jury." following customary practice, fined the - that must explore that subtle and elusive jurors for their incorrect verdict., Four boundary." United States it. Doughertz, were incarcer Article ILL, Section Two of the United jurors who refused to pay supra, at 1142. Thus, jury nullification States Constitution states that ‘The Trial ated. They sued for illegal imprison allows the jury to act as theconscience of won Bushnell’s Case, 124 of all Crirytes, except in Cases of Im ment. They in the community. peachment, shall be by Jury; and such Eng. Rep. 1006 C.P. 1670. Trial shall be held in the State where the The same scholarly works and political In themore recent case of United States the thinking of the said Crimes shall have been committed." beliefs that influenced v.Doughertz,473F.2d 1113,1132 U.S. framers of our federal constitution also Dis. of Columbia Cir., who Then, we are readily familiar with the Court of App., influenced those who created and right to trial by jury recognized in the 1972 the majority of that Court recog later interpreted our state constitutional Sixth and Fourteenth Amendments tothe tilted that "the existence of an unreview righttoajury trial. United States Consii.tution and in Sec able and unreversible power in the jury, acquit in disregard of the instructions right to a trial by tions Seven and Eleven of our state’s to Ourstate constitutional constituijon. on the law given by the frial judge, has jury was initially embodied in Article for many years co-existed with legal XII, Section Six of the 1792 First Consti jury It was in Duncan v. State Louisiana, practice and precedent upholding in lution of Kentucky; "That trial by of structions to the jury that they are re

JUNE1992 IThe Advocate 99 shall be as heretofore, and the right of 12 men all of whom must agree upon crowded dockets and busy defense attor thereof remairi inviolate," The language a verdict. Bran/tam v. Commonwealth, neys many disthct courts routinely re was changed slightly in the 1799 Ken 209 Ky. 734, 273 S.W. 489 1925. The solve traffic and misdemeanorcases with tucky Constitution in Article X, Section Court in Bran/zoan went on to citeBlack- bench trials. Six, "thatthe ancientmode of trial byjury stone’s Commentaries, Vol. 2, p. 350; shallbe held sacred, and the right thereof Hales’s Pleas ofthe Crown, Vol. 1, p.33; As the defendant in Hayes must have remain inviolate." The Bill of Rights of and Cooley’s Constitutional Limitations believed, sometimes the choice of a the 1850 Constitution, Article XIII, See 391. All of these commentators influ bench trial is to our client’s advantage. lion Eight added the condition "subject to enced the significance our state and fed However, despite the generally heavy such modifications as may be authorized eral courts place on the right to trial by caseload of public defenders and the by this Constitution." Our present Sec jury. court’s interest in moving the docket tion Seven contains the same wording as along, we, as carriersof the "torch of the the 1850 version. In contrast, there is no constitutional or Bill of Rights" see Judge Johnstone’s unqualified statutory right to be thed by article which follows have an ancient, The right to a jury thai in a criminal a judge without a jury. RCr 9.26; Hayes awesome duty to protect our client’s right prosecution contained in Section Eleven v. Commonwealth, Ky.App., 470 S.W.2d to a thai by jury. of our present constitution was present, 601. "In view of the many constitutional with the same language in Article X, guarantees ofthe right to thai by jury, and Sometimes, we as professionals don’t put Section Ten of the 1799 Kentucky Con inlight of the universal acceptance of thai as much trust in thejury system as do our stitution and in Article Thirteen, Section by jury as a due process requirement, a clients. Perhaps we need to remember 12 of the 1850 Kentucky Constitution. criminal defendant cannot be heard to that the reason our client has chosen to be complain that he received a thal by jury tried by 12 common people, not"special The "ancient mode of thal by jury" was when he wanted a thaI by the judge in- ists" not lawyers, but people who know interpreted to mean a trial according to stead." Hayes v. Commonwealth, supra. "no more law" probably less law than the course of the common law, and thus However, defendants may waive their does our client, is because ofthehope that secures the right only in cases where a right to a jury thai and receive a trial those 12 can feel as s/he feels, believe as jury thai would have been customarily before the judge upon agreement by the s/he believes and arrive at a resolution used at common law. Carder et a!. v, court and the Commonwealth. that approximates justice. Weisengburt, 95 Ky. 135, 23 S.W. 964 1893. Following Thryes, supra, the Kentucky REBECCA DILORETO Supreme Court enacted RCr 9.26. Sub Assistant Public Advocate In felony cases the essential features of section one of the rule reads "Cases re Appellate Branch that thai included that the citizen accused quired to be tried by jury shallbe so thed Frankfort "be putupon his trial in a court of justice, unless the defendant waives ajury trial in presided over by a judge, and that he be writing with the approval of the court and thed by a jury of the vicinage composed the consent of the Commonwealth."With

"I consent, Sir, to this Constitution because I expect no better and because I am not sure that it is not the best."

JUNE 1992 IThe Advocate 100 "WE THE PEOPLE" IN JURY ASSEMBLED:

THE DEFENSE APPEAL TO HIGHER LAW

William A. Pangman

"Why do we love this trial by jury? high esteem was twofold: 1 there ex whether the law is just as applied in a Because itprevents the handofoppres isted a general distrust-of governmental given circumstance is known, in the thaI sion from cutting you off... This gives power and any superficial checks "legal process, as jury nullification. Nullifica me confon - that, as long as I have expert" might impose upon the govern tion is always an available and appropri existence, my neighbor will protect ment; and 2 there was a general faith in ate defense in any criminal prosection in me." the judgment of the common man.4 Our which principles of justice are violated. faith in the jury prevailed in America Jury nullification is not an anachronistic - Patrick Henry throigh the early to mid-nineteenth cen prerogative; jurors today may. still, with 3 Elliott, The Debases in the Several tury. Nevertheless, being held in such absolute impunity, engae in nullifying State Conventions on the Adoption of high regard did notguarantee that the jury laws they feel are unjust. the Federal Constitution, 545, 546 did not have its detractors. Those who would remove the right to decide the This proposition is always true so long as justice of the law from the jury’s preroga the jury has the power to return a general I. INTRODUCTION tive most often sat not more than fifteen verdict. The term "general verdict" is feetfrom the jury box. Over the course of defmed as "one by which the jury pro approximately sixty years in the nine nounce at the same time on the facts and Centuries ago in England, when the pen teenth century, trial and appellate courts the law, either in favor of the plaintiffor alty for even the most minimal crime was issued decisions which held that the pre defendant. The jury may find such aver death, sympathetic juries refused to apply rogative to decide questions of law fell dict whenever they think fit to do so" the instructed law and acquitted defen solely to the bench. These decisions, The Fourth Circuit Court of Appeals ac dants before them, even though the letter however, failed to examine the framer’s knowledged the importance of this safe of the law itself may have been violated. intent and failed to consider fundamental guard to liberty in United States v. Moy The jury deserved the high position it principles of natural law from which the lan: jury’s legitimate power emanates. held in the esteem of Englishmen. The the role of the jury throughout history has We recognize, as appellants urge, Alexis de Tocqueville, in the early undisputed power of the juiy to acquit, been to serve as a check against "the law manipulation of the law jis an instrument 1800’s, recognized the integral role the even if its verdict is contrary to the jury is a political institution as well as a as given by the judge, and contrary to of royal despotism Overthe course which of time, the jury was to lose much of its judicial one: "[flt places the real direction the evidence. This is a power of society in the hands of the governed, must exist as long as we adhere to the vitality in the country in which it was for nourished. The Englishmen who were at or of a portion of the goveed. and not general verdict in criminal cases, that very in that of the government." the courts cannot search the minds of time settling in American colo which nies, however, carried with them the july the jurors to find the basis upon In Our own era we have witnessed the they judge. If the jury feelsthat the law as a guarantor of liberty. On this conti accused is nent, the jury was to gain new life and development of disturbing trends which underwhich the defendant is new meaning? remind us to resort to the security of our unjust, or that exigent circumstances neighbors in limiting the excesses of gov justified the actions of the accused, or Alexander Hamilton reflected the senti ernment: the War on Drugs has led to for any reason which appeals to their compromises upon due process; our free logic or passion, the jury has the power ment of the Framers in this regard when abide faced with objections to a draft of the doms are under constant attack by fac to acquit, and9the courts must by Federal Constitution which failed to safe tions within society and those in govern that decision. guardjury trial, he observed: ment who want a more "organized and homogenized" society; a system once Even without concurrence of any fellow The Mends and adversaries of the plan constrained by -the mandate of justice is jurors in a criminal trial, a single vote of of the convention, if they agree in noth now a processing mill which churns out not guilty can nullify or invalidate any ing else, concur atleast in the value they convictions in the face of once sacred law which in that particular case, for one set upon the trial by jury. Or if there is constitutional safeguards. Very simply, reason or another, should notbe enforced any the government established to be our ser in the way in which the government seeks difference between them, it con vote of not sists in this; the former regarded it as a vant has become our master, at the ex by its prosecution. A single valuable pense of the rule of law save for the guilty must be respected by all members safeguard to liberty, the latter not there merely represented it as qie very palladium of ultimate vestige of sovereignty - the of the jury, for a juror is free government. jury’s right to correct injustice through its to agree with the majority, nor is a juror power to render an irreversible, general there to be a rubber stamp, merely to do The reason the jury was perceived in such verdict of "not guilty." This right to say the bidding of thejudge or the prosecutor. A conscientious juror will vote in accord-

JUNE 1992 IThe Advocate 101 ance with his or her individual opinion, thaI, and to hold all laws to be applied in modifications as may be authorized by from the standpoint of preventing or a particular case invalid if they are unjust this Constitution." Webster’s New averting injustice in the articular case in or oppressive, and to hold all persons World Dictionary of the American lan which he or she serves. - guiltless of violating or resisting the exe guage defines "inviolate" as: "Not vio cution of such laws.13 This has been a lated; kept sacred or unbroken." Courts Unfortunately judges today have lost "basic and long-recognized principle of today have lost sight of this mandate. But sight of the historical importance of this criminal law and IqEocedure throughout even a century of apathy cannot dilutethe defense and are more concerned with the United States." least of its privileges. Unlike other states, stressing the law-fact dichotomy than Kentucky’s Constitution provides abso preserving the jury in its time-honored Whatever its history it is claimed that this lute protection of the "ancient mode" of role in the service of the interests of jus doctrine of jury nullification may be thaI by jury, not constrained by recent tice. While the right may have been lying "founded on a confusion 4etween the innovations of the latter nineteenth cen dormant since the turn of the century, it ideas of power and right." One com tury. It is the position of this article that is slowly being reawakened. Grass roots mentator has answered: the history and language of the document organizations like Montana’s Fully In itself makes clear, the bench is not per formed Jury Amendment Organization "The power of a jury to pronounce a mitted to usurp the jury’s timehonored have heightened public awareness of the nullification of a proceeding before it is prerogative to decide whether the law is jury’s right. ‘State legislators have intro more than a power; it is a right. Like just as applied under the Kentucky Con duced bills to amend their constitutions other rights, it becomes meaninglessly stitution. to require that instructions be givento the diluted when its holdr is unaware of jury on their right to decide both the facts his or her authority." The purpose of securing the jury thai as and the law. Selected groups, which inviolate was to maintain that right as a have been the target of government Yet there are those persons who argue dynamic check on government, capable prosecution, like the NRA, NORML and that nullification is only a power the jury of performing its intended political func abortion activists have risen to be possesses as a result of historical acci tion. There is no way to maintain this role counted among the supporters of the dent. Whatever distinction such persons for the jury unless counsel can argue the jury’s right to nullify. Media coverage of will try to draw between the power and law to the jury, or unless the jury can be these movements has markedly increased the right, "whatever may be its value in instructed on their right to decide the law over the last few years. ethics, in law it is very shadowy and as well as the facts when justice so re unsubstantial. He who has the legal quires. "Inviolate," as the Kentucky The common rallying cry of these groups powç,r7to do anything has the legal framers must have understood it, meant is that the preservation of individual lib righr ‘ To square with principles of that the court could not impair any aspect erty depends upon Americans exercising natural law, however, the exerciseof any of the historical right. Certainly, impair their prerogative to judge the justice of power must be consistent with higher ment of the jury’s prerogatives occurs any criminal prosecution. While these notions of ‘justice’ in order to deserve the where a court refuses to countenance the groups lead the way, those of us who are status of ‘right.’ free discussion of the jury’s recognized sworn to uphold the Constitution should function. Respectforthejury’shistorical not fall too far behind. For under Ken An understanding of the distinction be role, meant to be protected by sections 7 tucky’s state Constitution in particular, tween a "maluinprohibitum" and a ma and 9 of the Kentucky Constitution, is we need not delay for the promulgation lum in se,’ or a thing which is wrong impaired and, in fact, violated when the of new constitutional provisions. The because it is prohibited from a thing twelve citizens are not informed of their same remedy awaits rediscovery under which is a wrong in itself, provides addi power to nullify. The framers could not the dust and cobwebs which cover the tional explanation for the proposition that have intended to tolerate this compromis existing parchments. The Framers of our nullification is a right. Those acts which ing of the jury’s role when they selected constitutions understood the orgins and are maluin in se are illegal by their very the absolute words used in drafting the functon of the jury when "we the people" natur based upon principles of natural Kentucky Constitution - "shall be held so assemble. We must urge recurrence to law.’ These principles are themselves sacred and ..semain inviolate." Inevita this fundamental design. "accessible to the ordinary man, [and] bly, the framers of the Kentucky Consti invite each juror to inquire for himself tution appreciated the historical role of whether a particular rule of law [is] con the jury in its fullest function, reminding II. JURY NULLIFICATION IS sisten with the principles of higher the state who is sovereign: government A FUNDAMENTAL RIGHT law." Against the latter, the jury has of, by and for the people. Support for this little choice but to detennine only the historical interpretation of the jury right facts because a crime ma/urnin se derives can be found in the fact that the framers A. Nullification Ls a Right from natural law. But against the former of the Kentucky Constitution sawit to laws of men, the jury thal provides the codify the principles ofthe Zenger case It has long been acknowledged that the ultimate right of recourse - a direct ap in section 9 of the Kentucky Constitu role of the jury is to provide "an inesti peal to the source of the law, the people. tion: mable safeguard against the corrupt or To say that the people have no right to * overzealous prosecutor and against th9 pass judgment in this regard denies effect In prosecutions for the publication of compliant, biased, or eccenthc judge."1 to the principle which actuated the Foun papers investigating the official con ders - government duct of officers or men in a public ca For more than six hundred years - that is, that we would be a "of, by, and for the people." pacity, or where the matter published is since the Magna Carta, in 1215 - there has been no clearer principle of English proper for public information, the truth or American law in criminal cases than B. The Kentucky Constitution Acknow thereof may be given in evidence; and that it is not only the power and duty of ledges Nullification isa Right in all indictments for libel the jury shall juries to judge what are the facts, but also have the right to determine the law and it is the province of the jury to scrutinize Section 7 of the Kentucky Constitution the facts, under the direction of the the moral intent of the accused. It is their provides: "The ancient mode of thal by court, as in other cases. Emphasis paramount duty to judge the justiceof the jury shall be held sacred, and the right supplied law which governs the outcome of the thereof remain inviolate, subject to such

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While the contours of thejury right under vide defense counsel’s argument with a the ultimatejustice of the law. the Kentucky Constitution have hot yet nexus between the Kintucky Constitu been fully explored in appellate deci tional provisions and our heritage in the Lockean thought was the dominant po sions, some argue they have been fully jury thaI as an expression of Locke’s litical theory at t4e time of the Constitu explored and have met with limitation principles of natural law. The defense ion’s adoption. According to Locke, under the Federal Const4ttion. Spamf& must not allow the Kentucky Constitu the state does notbecome an end in itself, Hansen v. UnitedStates" has been cited ion to be interpreted in a vacuum - it but rather it becomes a means to the ful for the proposition that the Federal Con should be interpreted in light of the cir. fillment of individuals as they define sritutiondoesnot encompass a "right" of cuinstances and inteD}ions which sur their own ends. In so doing individuals nullification. Despite this holding, state rounded its drafting. The Kentucky do not erect some common superior with courts are notbound by the federal mini Court of Appeals has already acknow whom they must thereafter negotiate the warns, especially when the plain lan ledged the fundamental role natural law terms of their future existence. Rather, guage ofthose stateinstruments preserve plays in the preservation of a free society: they createan instrument for carrying out the "ancient mode of trial by jury." The the terms which, as sovereignindividuals Spaif Court arrived at theconelusion no Man in his natural state has a right to do themselves, they have previously negoti federal rightexisted because the Federal whatever he chooses and has the power ated. In short, government is not a party Lbnstitution did not expressly sure a to do. Whenhe becomes a members of to the social compactbutthe result of it. jury right to "remain inviolate.’ The organized society, under governmental silence of the framer’s of the Federal regulation, he surrenders, of necessity, Writing as rough contemporaries in the Constinstion was not similarly exercised all of his natural rights, the exercise of seventeenth century, John Locke and by the representatives who attended the which is, or may be. injurious to his Thomas Hobbes found different answers Kentucky ConstitutionalConvention and fellow citizens. This is the price that he to questions on the nature of liberty and drafted that instrument in an atmosphere pays for governmental protection, but sovereignty. Hobbes, the defenderof ab of burgeoning Jacksonian Democracy. itis notwithin the competency of afree solute sovereign power, regarded hit- My constitution like Kentucky’s, which government to invade the sanctity of mans as uniformly selfish in a world is not constrained by the false logic of the absolute rights of the citizen any without external authority to restrain Spar]’, can provide protection for the further than thdirect protection of so their passions. Life in this condition was ciety requires. "solityy, poore, nasty, brutish and jury’s right, At the proper time, Sparf ‘ itself should be assailed for its unprinci short.’ To acquire security and order, pled sophistry, such as the High Court’s Hobbes would exact a price consisting of questioning the veracity of historical re III. NULLWICATION IS AN the surrender of liberty andproperty to an ports of the jury’s prerogative, its mere CHORFD IN PRINCIPLES OF absolute sovereign. While the individuals assertion to become law that the function NATURALLAW, in this Hobbesian social contract would of the jury was "to respond as to the be somewhat better off, the big winner facts;" and its fear that society would be from this exchange wouldno doubt be the left "without a Constitution" if the jury PROCEDURAL AND state. Being a legal monopolist, the sov had the right to decide questions of law. SUBSTANTIVE DUE PROCESS ereign state would exact monopoly The Sparf decision should be challenge rents-most of the benefits of political despite one hundred years of compla A. Natural Law union would be expropriated by and for cency, for as Professor Colley observed: the State. To the founding fathers of both the Fed devise a set Acquiescence for no length of dine can eral and Kentucky Constitutions, it was a Locke, by contrast, sought to legalize a clear usurpation of power, self-evident truth that there is a law of of institutional arrangements which where the people have plainly ex would allow individuals to escape the naturewhereby all men are endowed with having pressed their will in the Constitution certain immutable, inalienable rights, perils of social disorder without and appointed judicial tribunals to en to surrender their entire stock of individ possessed apijt from and transcendent to indi force it. A power is frequently yielded government. At the Constitutional ual rights. His goal was to vest the to merely because it is claimed, and it viduals composing the society with all Convention, Madison observed, consis union. may be exercised for a long peroid n tent with theories of natural law, that the the benefits created by political violation of the constitutional prohibi Secured among the tights in this society people are "the fountain oçfil power" - interpos tion without the mischief which the this was the law of nature." Since natu was the right to thaI by jury. By being sufficiently interested in the sub ing sovereign individuals between the ral law grows out of human existence, it was ject to raise the question; but these cir is not dependent upon any enacted lasy state and the accused, government cumstances cannot be allowed to sanc prevented from expropriating the bene system of government, or body politic. state tion clear infraction of the Constitu The English philosopher John Locke, fits of the social contract. Thus, the tion. itself had no claim to new and hide who most prominently expounded these the per principles, wrote in 1690: pendent prerogatives as against It is difficult to escape the absoluteness sons under its control. The police power insures that the of sections 7 and 9 of the Kentucky Con [Elveiy man hath the rightto be. .2the attribute of sovereignty stitution. Research of the proceedings of executioner of the law of nature." state can effectively provide peace and Kentucky’s Constitutional Convention order to the individual members of the and that of other stateconstitutional con society but, critically, the powers’ theo What flowed from Locke’s philosophy limits of what ventions which emerged with very sirni was the idea that legislative acts are not retical outer limits are the lar provisions, together with early deci sovereign parties to the social compact absolute merely because they are prom ma state ofnature. The state sions on the meaning of these provisions, ulgated by a political body, rather they were entitled Should be fruitful sources of favorable cannot prohibit what could not legiti are limited by the natural law which is or prohibited by pri analysis. Likewise, research regarding derived from the only sovereign party to mately be resisted the language of the documents them vate action prior to the Lockean compact. the social contract - the individual. Be selves, together with other state constitu cause the individual is the primary source tions proceeding Kentucky’s and simi Acting on the principles expounded by ot the law which is intended to guide Hobbes’ Levia larly protecting the jury right should pro- society, he alone, can pass judgement on John Locke, and fearing

JUNE 1992 IThe Advocate 103 rights

than, the Framers of our Constitutions an accused is guaranteed the right to a fair tives, and rights. Unfortunately, this no intended to make certain that since it is trial. A fair trial is ifrthrundominated by tification is almost always. withheld from man which is the source of government a potentially overzealous prosecutor, a instructions to the jurors once they are and government is responsible to man,it biased judge, unjust or immoral laws. selected. A free society cannot not long is within the province of the jury to Sure What is at the heart of procedural due rely upon haphazard oral tradition. that the conviction of an accused does not process then is understood to embody the violate the principles of higher law.32 The requirement of a meaningful opportunity Likewise, except for each juror’s pre rightto interpretthe higher law remained to be heard before the deprivatioi of an rogative to rule on the interpretation of exclusively with ‘we the people’. Were it individual’s liberty takes place. The the law and the justice of the law, juries otherwise, the government would pos right to present a defense, tvrefore. is would be no real protection whatsoever sess ultirnate sovereignty - a notion the fundamental to due process. Jt should to an accused person because they would Framers feared and would not admit for be axiomatic that the most elemental no longer function as the "necessary posterity. These natural law principles principles of due process are violated counter to case harded judges and ar were anchored as a matter of constitu when an accused is prevented from pre bitrary prosecutors? Unless jurors tional significance at section 1 of the sentg a defense which appeals to jus have the power to hold laws invalid that Kentucky Constitution which guarantees tice. are unjust or oppressive, then instead of that "[aill men are, by nature, free and juries being a "palladium of liberty" - a equal, and have certain inherentand inal As we have observed, whilejuries, acting barrier against the oppression of govern ienable as the community’s conscience, havehis ment - they become mere tools in its torically possessed the power to disre hands, instruments for carrying into exe Procedural Rights and the Right to gard the requirements of the law where it cution any injustice and oppression that Present a Defense finds that those requirements cannot be the government may desire to have exe justly applied in a particular case, very cuted. Such a trial would, in reality, be a As a necessary component of due proc few juries are, in fact, instructed by the trial by the government and not a trial by ess, the right to a thai by jury represents thai judge that they possess this power,. jury. a fundamental ideal in our constitutional If both proponents and opponents of nul scheme. Due process of law is the pri lification agree that there are instances 2. Substantive Rights mary and indispensable foundation of in where acts of nullification are in the best dividual freedom. It is the basic and es interests of 9stice and are therefore A. Introduction to Substantive Due sential term in the social compact which praiseworthy, then there should also be Process defines the rights of the individual and agreement that the jury should, at mini limits the power the state may exercise. mum, be informed of this power, whether Whe presenting a nullification argument Unlike some legal rules, due process is by. the judge or counsel. Most jurors are to the court, not only should the defense not a technical concept witha fixed con led to believe that they may only deter make reference to procedural protections tent unrelated to time, place and circum mine issues of fact. "I see no justification which are implicated, but the substantive stance. "Due Process" is a dynamic, for, and considerable lwm in, this delib rights involved also must be addressed. rather than a static, concept. Its scope erate lack of candor." The procedural All fundamental rights do not flow di should be determined by a process of guaranteeto a thai by an impartial jury is rectly from those enumerated in the Con judicial inclusion and exclusion,but con vitiated under the thumb of a dominating stitution, but instead, rights are funda sistently recurring to the fundamental judge who, by refusing to acknowledge mental if they are"explicitly or tin,jqlicitly principles of justicereserved in the Fed the defendant’s right to present this de guaranteed by the Constitution.’ Sub eral and Kentucky Constitution. Be fense, emasculates the jury’s function. stantive due process presents limitations cause due process is not a technical con This rightis impermissibly compromised which extend beyond the mere methods cept with a fixed content, fundamental if the jury is left unaWare of the preroga or procedure involved in governmental fairness is the overall test. tives of its full power. action, and rather, concern the substance or content of that action. Under the Thus, the fifth and fourteenth amend In United States v. Dougherty39 Judge substantive aspect of fourteenth amend ments, as well as the fair trial guarantees Leventhal argued that failure to inform a ment due process, some deprivations of in the sixth amendment, and the Kentuky jury of its nullification power would not life, liberty, or property are thus deemed constitutional corollaries, are additional result in an ignominious end to the jury’s "illeimate no matter what the proc sources of authority for the positionKen power because the people will know of ess.’ This species of due process pro tucky counsel should advance for justify their ,rerogative from the "total cul hibits state denials of fundamental liber ing a nullification argument. These pro fire.’ Thus it is said that the jury knows ties unless there is a compelling govern visions provide constitutional protection well enough that it is not limited to the mental interest to justify the infringe for the accused’s right to fair and due choices articulated in the form of instruc ment. In its contemporary form, substan process. tions by the court; that there is informa tive due process involves judicial en tion communicatedfrom the totalculture forcement of rights which, although not In view of its historical setting in the - literature, current comment, conversa found in any specific textural provision wrongs which called it into being, the tion, and history - the totalit, of which of the Bill ofRights, are deemed to have due process provision of the fourteenth adequately conveys the idea the jury has a "value so essential to individual liberty amendment - just as that in the fifth -has the freedom in an occasional se to de in our society" that only the most com led few to doubt that it was intended to part from what the judge says. Realisti pelling stateptereSt will warrant any guarantee procedural standards ade cally, however, in the society of today, in abridgement. quate and appropriate, then and there which Health and Hygiene classes re after, to protect, at all times, people place history for social studies credits, There are many cognizable liberty inter charged with or suspected of crime Judge Leventhal’s faith in our culture ests implicated in any court’s decision both those ho4ing positions of power rings somewhat hollow. No longer are not to allow a defendant to appeal to and authority. citizens alert to the vitality of their heri justice, or to allow thejury to be informed tage and duty. At no time in our history of its full prerogatives, If the jury has the Under the procedural provisions of both has it been more important to notify po substantive right to ventilate its sover the Federal and Kentucky Constitutions tential jurors of their powers, preroga eignty and exercise the panoply of its

JUNE 1992 IThe Advocate 104 powers without fear of punishmentfor its ninth amendment provided that simply the people had best be omitted in the verdict, then that fundamental liberty is because a right had not been enumerated legislative or judiciary department, I certainlysuppressed by imposing a strin in the first eight amendments, did not would say it is better to leave them out gent law-fact dichotomy upon those mean that it did not exist, rather it was of the legislative. The execution of the twelve peers. Moreover, if the defendant understood to be retained by the people. laws is rq importantthan the making has the right to the unimpaired individual The ninth amendment, in its very es of them. judgment of his peers, that too is im sence, is about rather than of the Consti pinged if those same jurors are misin tution. It addressed the primacy and The observation ofde Tocqueville on this formed and intimidated to the point structural meaning of the Constitution point is as true today as when it was where they do not perform their tradi itself. Indeed, the introduction to the written in the 1830’s: tional function. Constitution of a written Bill of Rights was a serious risk to thevery principles He who punishes infractions of the law The court’s usurpation of the jury’s role of natural law and social compact from is therefore the real master of society. cannot be said to rest upon any "compel which the Constitution was derivative. Now, the institution of the jury raises ling interest" whatsoever. Certainly, it The ninth amendment was a remedy the people itself, or at least a class of cannot be argued that any safeguards ex against such a risk. Justice Goldberg, in citizens, to the bench ofjudicial author 1st to protect the accused from an unjust his concurrh opinion in Griswold v. ity. The institution of the jury conse deprivation of liberty when no person or Connecticut, acknowledged the scope quently invests the people, or that class group ofpersons in the courtroom has the of these retained rights whenhe declared: of c4izens. with the direction of soci power to pass judgment on the law other ety. than the government represented in the The language and history of the ninth person of the prosecutor and judge. In amendment revealedthat the framers of A court’s failure to inform a jury of its short, the jury has long had the right to the Constitution believed that there are power to disregard the law and evidence "overrule" the judge on matters of the additional fundamental rights, pro is tantamount to a denial of the right to law, and it cannot be deprived of that tected from governmental infringe trial by jury. The Framers of our Consti right without the state first advancing a ment, which exist alongside those fun tution surely didnotcontemplate guaran compelling interest as its justification. damental rights specifically mentioned teeing the inalienable right to trial by an in the st eight constitutional amend ignoring or desiccated jury. Specifically, B. Sources of the Substantive Right ments. - they did not intend that a jury should remain uninformed of its power toisre If the jury is nOt the ultimatejudge of the The importance in the minds of the fram gard the law in a particular case. The law, then individuals become subordi ers, of protecting natural rights was fur concept of a thal by jury of one’s peers is nated to the power of the state, and the ther evinced by the fact that they gave it utterly undermined by denying to the ju state moves one step closer to overriding double emphasis by a second affirmation ror and to the accused the juror’s right to sovereignty. Both the Federal and Ken in the tenth amendment: act on a basis of personal morality in tucky Constitutions evidence the Frarnc delivering a general verdict of "not ers’ concerns to keep the coercivepower [T]he powers not delegated to the guilty." of the state in check. Because our repub United States by the Constitution, nor lican form of governmentmust guarantee prohibited by it to the states, are re the rights of the individual against the served to the states respectively, or to IV. CONCLUSION state, nulliqcation is but a facet of that the people. emphasis added." guarantee:4 Even though the power to nullify was not specifically enumerated With its final clause viewed in conjunc The power of the jury to nullify has long in the first eight amendments, it was im tion with the ninth amendment, the tenth served as an integral safeguard in our pliedly secured within the depth of the amendment is properly conceived as de system of checks and balances. Doubt retained rights of the ninth amendment, lineating powers possessed by neither the less, the principle of nullification is as and those powers reserved to the people federal govnment nor the states, but by much a part of our democratic heritage as by the tenth amendment. the people. This tenth amendment res are the principles of fairness and due ervation of powers to the people supports process which find security in its em Unlike the other and better known the substantive interpretation of the ninth brace. The power of the jury to nullify amendments which merely reflect the amendment and particularly establishes must thus be admitted because it serves popular grievances of the time, the ninth that judicial usurpation of the jury’s pre well as a device in the republican system amendment defines the most fundamen rogative would constitute a taking of the of checks and balances. When govern tal of all relationships between consti powers reserved to the people. In this ment seeks to prosecute the individual for tuted authority and individuals: sover sense, nullification must be linked to both an alleged violation of its law, the jury eignty. the procedural and substantive due proc provides necessary assurance that gov ess rights of the accused in order to give ernment doesnot unfairly wage an unjust The structural role played in the ninth effect to the philosophical underpinnings or immoral law against the accused. amendment is often conveniently over of higher law which actuated the found looked. It is a counterweight to the vast ing of this republic. Throughout history, where the jury has momentum generated by governmental been informed of its power, via the power. This is an important, even vital, Given the benefits and dangers of any judge’s instruction or via the arguments structural role that is only partially possible system ofjustice, it is the worthy of counsel, it has acted as perhaps the filled by other constitutional guaran attitude in America that, because the jury greatest guarantee of liberty human fore tees and prohibitions. Indeed, by its is fairly representative of the community, sight could devise. As one commentator terms, the amendmentis the final coun the sovereign power of judgment ought has noted: "So far as justice was done terweight, to be used against govern to be vested directly in this community throughout the centuries, it was done b mental intruon upon the people when cross-section. As Thomas Jefferson has jurors and in spite of savage laws." all else fails. noted: According to this view, juries were a force for moderation in the application of Considered by many to be redundant, the *r I called upon to decide whether the criminal law, regularly overriding

JUNE 1992 IThe Advocate 105 *.hshjçglçodes to protect defendants God, or you shall starve for it. was the trial of John Peter Zenger. Prior from punishmenth that were seen as ex to the revolution, Zenger was the only cessively severe. - Before the jurors left the courtroom, printer in New York City who would Penn exhorted them with these words: publish material without the authoriza Perhaps more significantly, nullification tion of the British mayor. Lacking the is also to be acknowledged as a right. The "You are Englighmen, mind your privi required permission amounted to the first principle of natural law, that indi lege, give not away your right." criminal sedition. See Sxheflin and Van viduals are sovereign, could fmd no Dyke, Jury Null{fication: The Contours clearer expression than in the jury’s pre Edward Bushell, one of the most of a Controversy, 43 Law And Contemp. rogative to judgewhether the laws of men prominentjurors,responded along with Prob. 51,57 1980. Unfortunately for are just when applied. The individual, by his fellow jurors: Zenger, throughout the colonies at this the measure of this principle, is the only time, truth was not a defense to libel or party to the social compact for whom the "Nor will we ever do it." sedition. Id. higher law is accessible. Governments possess no general competency to dis Moore, The Jury: Tool ofKings, Pa/la Needless to say, the colonists’ sentiments cern the higher law. This principle was dkun of Liberty, 49, 88 WiLAnder for their former homeland were less than well understood by the Framers when son1973. amiable, and Zenger’s "seditious" acts they interposed those "twelve good men seemed heroic to an over-taxed and op and true" between the government as Had the jurors yielded to the guilty ver pressedBritish colony. At Zenger’s trial, prosecutor and the government as law dict sought by the judge and the prosecu his lawyer, Alexander Hamilton, in- maker. tion, William Penn most likely would formed thejurors that they "had the right have been executed, as he clearly broke beyond all dispute to determine both the In the modern era, however, the jury the law. The jurors endured torture in law and the facts[s]."Id., citing J. Alex faces its greatest challenge: the devitali prison, without food or water, soaked in ander,A BriefNarration ofThe CaseAnd zation of this power and the undermined urine,and barely able to stand, yet they Trial Of John Peter Zenger 78 1963. appreciation of the jury as a right. Cer would not give in to the judge and return Thejury acquitted Zenger. tainly all legal scholars and jurists alike the guilty verdict sought by the Crown. agree the Federalist, No. 83, at456 A. Ham 6that jury has the power to nul The jurours defiantly shook their fists in 3The suppression of knowledge con the factof the constituted authority, were ilton Scotted. 1894. cerning the prerogative consistently in- ultimately fined for their verdict of Not fringes the jury right in violation of the Guilty, and imprisoned until the large " R.Pound, supra note l,at 128- Kentucky Constitution and both express fines would be paid. Edward Bushell was 1301930. - and implied Federal Constitutional guar said to haveadamantly declared"mylib antees. erty is not for sale." He appealed to a See, e.g., How, Juries as Judges of higher court, and nine weeks later he Criminal Law, 52 Harv.L. Rev. Is the relinquishment of trial by jury... was freed, ina decision establishing that , 5821939. One of the earliest instruc necessary to your liberty? Will the the power of the people residing in the tions givento a jury to inform them of abandonment of your most sacred jury would ultimately be stronger than their fullest power was that given by Mr. rights tend to anyone’s security? Ub that of government. Never after were jur Chief Justice Jay in Georgia v. Brails ery- the greatest of all earthly blesss ied to be punished for not finding in ford, 3 U.S. 11794, to a special jury: ings- gives us that precious jewel and accordance with the court’s instruction. you may take everything else.., suspect Bushell’s Case, l24Fng.Rep. 1006CP. It may notbe amiss here, gentlemen, to everyone who approaches that jewel. 11670. The moment is marked for pos remind you of the good old rule, that o -Patrick Henry. terity by a plaque hanging in Old Bailey questions of fact, it is the province of famous English criminal courthouse the jury, on questions of law, it is the William A. Pangman and inscribed as follows: province of the court to decide. Bm it Law Offices of must be obser,’ed that by the same law WILLIAM A. PANGMAN Near the Site which recognizes this reasonable dis andAssociates, S.C. tribution ofjurisdiction, you have nev 295 Regency Court WilliamPenn and William Mead ertheless a right to take upon your Waukesha, Wisconsin 53187 were tried in 1670 selves to judge of both, and to defer- for preaching to an unlawful mine the law as well as the fact in ‘It Pound, Criminal Justice in America assembly in Grace-Church Street controversy. On this, and every other 115 2d ed. 1945. One of the most fa This tablet Commemorates occasion, however, we have no doubt mous examples occurred in 1670, in a you will pay that respect which is due case whereWilliam Penn, eventual foun The courage and anduranceof the Jury to the opinion of the court; for, as on the der of Pthnsylvania and leader of the Thomas Vere, Edward Bushell and ten one hand, it is presumed that juries are Quakers, was on trial forviolating an act others who refused to give a Verdict the bestjudgesoffacts, it is, on theother maldng the Curch of England the only against them, although locked- up with hand, presumable that the courts e the official church. This act was essentially food for two nights and were fmed for bestjudges of law. Butstill both objects struck down by the heroic Not Guilty their fmal Berdict of Not Guilty. are 1a14fully withinyour power ofdeci votes of the jury. Four separate times the sion. Emphasis added. verdict of the jurors was rejected by the The cade of these Jurymen was re court and the jury was ordered to return viewed on a Writ of Habeas Corpus 6A. deTocqueville, Democracy inAmer to deliberations with the following treat: and ChiefJustice Vaughann delivered ica 291,293 Vintage-Books ed. 1945. the opinion of the Court which estab Gentlemen., you shall notbe dismissed lish The Right of Juries’ to give their 7People v. Dillon, 34 Cal. 3d 441, till we have a verdict that the court will Verdict according to their Convictions. 490,668 p.2d 697,728 1983. accept; and you shall be locked up, without meat, drink, fire and tobacco; 2 One of the most notable cades to ele 8Bouviers’s Law Dictonary 3392 we shall have a verdict, by the help of valuate the power of the jury in America Rawle’s rev., 8th ed. 1914.

JUNE1992 IThe Advocate 106 9United States v.Moylan, 417 f.2d 1002, jury. Appeals may be made only to another respected by all governments entitled to 1006 4thCir. 1969. - jury, and if these juries disagree, the case the name." Id. at 663. E.G. Yiclc Wo v. shall be decided by a third jury. Hopkins, 118 U.S. 356 1886; Guld 10Omjued - 12 Colorado and Santa Fe Railroad v. Ellis, Duncan v. Louisiana, 391 U.S. 145, 165 U.S. 1501987; Kent v. DutIes, 357 11FUA proposes that the following Bill 1561968. U.S. 116 1958. See also McCu/loch v. of Jury Rights amend each State’s Con Maryland, 17 U.S. 4 Wheat. 316, 404- stitution: ‘3Spooner, An Essay on theTrial By Jury 05 1819. See generally, Massey, supra 1952. at 329-30, n.19, 129 and 134. "If funda 1. IN ALL TRIALS BYJURY: mental rights have any philosophical ‘4Sparfv. United States, 156 U.S. 5 1,88 foundation, it is upon the rock ofnatural a. a jury of at least twelve persons must 1895. law which has actuated so much of be seated unless declined by the defen American legal thought." Id., at n. 134; data. ‘5People v. Gottman, 64 Caal. App. 3d. Corwin, The Debt ofAmerican Constitu b.jurors mustbe selected randomly, from 775, 779, 134 Cal. Rptr. 834,8381976 tional Lawto Natural Law Concepts, 25 the widest possible base. Notre Dame Law 258 1950; Corwin, e. jurors may not be disqualified from ‘6B. Bwcker, Jury NullifIcation: Can a The "Higher Law" Background of service except by reason of conflict of Jury Be Trusted?, 16 Trial 41, 42; see American Constitutional Law Pt. 1, interest. Miranda v. Arizona,384 U.S. 436, 42Harv. L. Rev. 149, 153 1928 Prof. d. no evidence which either side wishes 4681966. Corwin argues that the ninth amendment to present to the jury may be withheld, illustrates natural law theories and con provided it was lawfully obtained. ‘7Kane v. Commonwealth, 89 Pa. 522, tends that the Constitution would notbe e. jurors may take notes in the court 5251979; State v. Koch, 33 Mont. "regarded as complete" without recogni room, have questions posed to with 490,497-98, 85 P. 272, 274 1906; see don of transcendental rights."; See also, nesses, and take reference materials into also United States v. Byrwn, 408 U.S. Towe, Natural Law in theNinthAmend the jury room. 125, 1361972. ment, 2 Pepperdine L. Rev. 270 1975; 1. during selection, jurors may refuse to Van Loan Natural Rights in the Ninth answer questions which they believe iso ‘5See generally La Fave & Scott, Crimi Amendment, Bobbs-Merrill Co., INc.,In lated theirright toprivacy, without preju nal Law 29-33 JIomback Series 1972 dianapolis, IN 1955. Patterson’s thesis dice. "an offense malum in se is properly de is that the ninth amendment protects"the fined as one which is naturally evil as inherent natural rights of the individual." 2 IN CRIMINAL TRIALS BYJURY: judged by the sense of a civilized com Id, at 19. munity . a. the court must inform the jury of its 27The Records Of The Federal Constitu right to judge both law and factin reach 19Note, The Changing Role oftheJury in tion Of 1787, at 476M.Farrand ed. ing a verdict, and failure to so inform the the Nineteenth Century, 74 Yale L.Rev. 1937. jury is grounds for mistrial and another’ 170, 1721964. trial by jury. The jurors must acknow 28See City ofDallas v.Mitchell, 254 S.W. ledge by oath that they understand this 20See footnote 9, infra. 944 Tex. 1922,"The people’s rights are right, no party to the trial may be pre 21 not derived from the government, but the vented from sewing on a jury because he 156 U.S. 51 1895. government’s authority comes from the expresses a willingness to judge the law people." Id. at 945-46. or its application, or to vote according to See generally the state’s constitutional conscience. prerogative to maintain the sovereignty 29 J. Locke, Second Treatise of Govern b. the jury must be told that it is not of the people over the government in ment, sec. 8-10C. Macpherson, ed. required to reach a unanimous verdict, section 2: 1980. hilt the failure to do so will produce a hung jury, and a retrial will be possible. T. Coolely, Constitutional Limitations, conveyance of natural law ideas c. a unanimous voter of the jury is re 1508th ed. 1927. into American constitutional theory was quired in order for it to render a verdict the work preeminently...of John of guilty or innocent, See generally T. Cooley, Constitu Locke..." Corwin, The "Higher Law" d. the jury must be informed of the range tional Limititations8th ed. 1927. Background ofAmerican Constitutional and type of punishments which can be Law, 61-89 1955. Lockean theory was arninistered if the defendant is found Commonwealth v. Campbell, 117 S.W. generally accepted by such esteemed guilty, and what, if any,exceptions to that 383 Ky. 1909. commentators as Blackstone. See 1 W. range may be available to the convict. Blackstone, Commentaries 42-44, 121- e. the court may grant no motions which While the term "naturallaw" is not used 22. Not only did Blackstone adopt limit the individual rights of the defen in the United States Constitution, it is Locke’s theory of the state, but the con dant, most particularly his right to have clear that natural law is long established stitutional framework of limited and the jury hear whatever justifications for in American Jurisprudence and is the seperated powers provides evidence of his actions the defense may wish to pre foundation of our government scheme. intent to disable the sovereign from seiz sent. See W. Friedman, Legal Theory, 136-5 1 ing the benefits of political union. SeeR. 5th ed. 1967. See also the opinion of Epstein, Takings: Private Property And 3. IN CIVIL TRIALS BYJURY: Chase, J., in Calder v. Bull, 3 U.S. The Power Of- Eminent Domain 16 2Dall. 386 1798, or the argument of 1985. a. the court must also inform civil thai jurors former Justice Campbell in Slaughter of their right to judge the law whenever the House cases, 83 U.S. l6Wall. 36 31 T. Hobbes, Leviathan ch. 13 1651. government or any agent of the govemment 1872; and the opinion of Miller, J4n is a party to the trial. Loan Ass’ n v. Topeka, 87 U.S. 20 Wall. 32See generally R. Pound, Criminal Jus b. agreement by the three-quarters of the 655 1874. "Implied reservations of in jury constitutes a verdict. tice ln America 2d ed. 1945. Consider dividual rights , without which the social- the following from the United States Su no judge may ovettirn the verdict of the compact could not exist, and which are

JUNE 1992 IThe Advocate 107 38 - prem Court, in which the Court indulged Dougherty, 473 F.2d at 1139 Bazel Rights: The Ninth Amendment, 38 Hast in a bit of political theory": - ton, Ci., concutting and dissenting. - - -ings Li. 305,315 1987. - - 39473 There are ... rights in every free government F.2d.1 1121972. 381 U.S. 479 1965. beyond the control of the state. A govern ment which recognized no such rights, 1155. ° Griswold, 381 U.S. at 488. which held the lives, the liberty, and the 401d. at property of its citizens subject at all times to 41 51 the absolute disposition and unlimited con See Ii at 1135. See generally, Massey, supra, note 43 trol of even the most democratic depository at 322-23. - of power, is after all but a despotism...There 42Id. at 1136. n. 52, 1139 n. 1, quoting are limitations on such power which grow Fortas, Follow Upil’he Jury, Central 52 Howe, Juries as Judges of Criminal out of the essential nature of all free govern Magazine, 61 July 1970. Law, 52 Harv. L. Rev. 582, 582 1939, ments, implied reservations of individual quoting 3 Works Of’ Thomas Jefferson rights, without which the social compact 435an Antonio Independent School Dist. 81, 82 wash. ed. 1854. could not exist, and which respected by all governments entitled to the name. v. Rodriguez, 411 U.S. 1, 33-34 1962 emphasis supplied. G. Allard, de Tocqueville note at 282 1839. This Lockean passage is found in Loan v. 3d American ed. Topeka, 20 U_s. Wall. 655, 63-66 See e.g., Moore v. City ofEast Cleve land, 431 U.S. 4941977; Doe v. Wade, 54Becker, JuryNullifIcation: Can A Jury 1875. See also Calder v. Bull, U.S. Trusted?, 16 Trial 41, 44 October S.Dall. 386. 388-89 1798. 410 U.S. 113 1973; Griswold v. Con Be necticut, 381 U.S. 479 1965; see also 1980. 33chambers v. Florida, U.S. 236, 277 Dickson, The New Substantive Due 555, Process and the Democratic Ethic: A Milsom, Historical Foundations Of 1940. Prolegomenon, 1976 B.Y.U.L. Rev. 43. The Common Law 403 1981. v. Hanover MulIane Central Trust Co., 45K. Lieberman, The Enduring Consti 56See supra note 10. 339 U.S. 306; Fuentes v. Shevin, 407 A Bicentennial Prospective 263- U.S.67; Boddie v. Connecticut, 401 U.S. wtion: 371. 641987. 43 44 J. Nowak, R. Rotunda & J. Young, 35See Rock v. Arkansas, U.S. Handbook On Constitutional Law 457 1987. 2d ed. 1983; see also United States v. 144, 36See Rock v. Arkansas, 43 U.S. 44 Carolene Products Co., 304 U.S. 1987. 152 n.4 1938. 2. See United States v. Moylan, 417 F.2d 47See Kentucky Constitution sec. 1002, 10064thCir. 1969. 48Massey,Federalism and Fundamental

Classroom Celebration of The Bill of Rights and Beyond

available on the Bill Following are some suggested ways in which the Constitution and Be sure to make use of the many audio visual materials movies, filmstrips. videos, records. etc. the Bill of Rights can be introduced to students of all ages: of Rights, including Work with students to create a visual timeline tracing the history of the Bill Begin by having students discuss the meaning of the word "rights." Read Rights and its amendments. through and discuss the Bill ofRights and the other amendments, of Plan a Bicentennial Bill of Rights bookshelf display; encourage students to Have students read stories and writebiographical sketches of James Madison, refer to the many books available on the Bill of Rights. George Mason, and other figures associated with the Bill ofRights. Declare an "International Bill of Rights" day in school. Ask students to Assign students to write sepoits on topics related to the Bill ofRights that are country of their choice and to be prepared in discuss the issue of of historical, current, or personal interest. For example, issues concerning the research the rights as it relates to that country. Right to Privacy, Freedom of Speech, Rights of the Accused, and the Right to Bear Arms would be appropriate. Assign students to research political practices related to Bill of Rights issues other lands and times. Take advantage of special days or months in the school calendar to stage in special events and learning activities on the Bill of Rights e.g. Law Day, with a Bill ofRights focus. Black History Month. Design field trips Invite speakers to address the classroom or an assembly, presenting informa Work with students to create classroom posters, maps, or murals illustrating tion on the Bill of Rights and subsequent amendments such as the Civil War the history of the Bill of Rights and the adoption of subsequent amendments. amendments 13, 14, 15 or the suffrage amendments19, 24, 26. Assign each student to design a poster focusing on rights enjoyed by Ameri Have students participate in mock trial presentations of landmark Supreme can citizens. Court cases specifically concerned with Bill of Rights issues.

Through the use of plays and dramatic readings, have students dramatize the Throughout the school and community, sponsor art, essay, and photography meaning of the Bill of Rights and Beyond. Assist students in writing original -contests with a Bill of Rights theme. scripts of their own on the Bill of Rights.

Be sure to make use of the many audio visual materials available on the Bill of Rights, including movies, filmstrips, videos, records, etc.

JUNE1992 IThe Advocate 108 S. -w

A NATURAL HISTORY OF THE FULLY INFORMED JURY ASSOCIATION

Don Doig

If patterns of history can be said to have dc For instance, in the American experienee,ju citizens have forthe lawand forthe cowls. By merts which arein some sense cyclicalit may ties aware of their power made the Fugitive reducing the intrusiveness and perceived in be because there are strong countervailing Slave Actvirtually unenforceable by choosing justice of the law, people will once again feel forces whichare always present. In particular, not to convict members of the Underground more like frS agents, and those laws which there is a never-ending struggle between the Railroad. And prohibition of alcohol became remain, will be respected. Citizens who per power of the State and its client institutions largely unenforceableas juries refused to con ceivethat they have significant power as citi and the freedom of individuals to simply be vict bootleggers. zen jurors will be more responsible, and more left alone to pursue their own dreams. Time In recent times, the issue ofjury nullification concerned with civic virtue. This would have and again, the people gain some measure of became an issue during the Vietnam War as to be an improvement overthe alienated, bos individuallibetty,power, anddignity attheex defense teams for inti-war and diafi protesters tile, and bitter citizens the current system pense of the power of central government sought to argue the merits of the war and tried breeds, convinced they are powerless pawns authority. But the temptations of power are to instruct jurors that they could vote accord in a game they neither control nor benefit by. strong, and inevitably the ambitious and ing to the dictates of conscience. Whether Jury nullification, as the power and the legal greedy among us find ways to subvert the they were allowed to do so depended on the doctrine is known, remains largely intact be gains made by the people in defense of their judge’s opinion of the war. causejurors are not held accountable for their liberty. And so thecycle begins again. Starting in the last half of the nineteenth cen verdicts, and may not be punished if their ver This struggle is manifested in many ways. tiny, judges began to chip away at the power dict displeases the authorities. And a verdict One of the be ap really vital arenas of conflict be of juries. The legal debate has not been over of "not guilty" is final and may not tween theinterests ofpower andliberty occurs whetherjuries have the power to judge thelaw pealed. We at PITh believe that jurors ought in the courtroom. In the civilizations of West they do, indisputably but whether the judge to be told the truth about the trueextent of their ern Europe, a mechanism evolved during the should inform them that they do--or whether powers, and seek to require that judges tellju course of sinaggles between the state and the the defense counsel can so tell the jury, or ar mrs that they may in fact judge the merits of people which ensured that the people have a gue the merits of the law, or discuss the mo the law, and that they may vote according to de defensive handle on the government. This tives of the defendant, their consciences. At the very least, the was the institution of trial by common law fense ought to be able to inform thejury with jury, by which citizens drawn from the com out contradiction, and argue the justice and We are now entering another period of crisis munity passed judgment not only on wheTher constitutionality of the law. in the defense of liberty, and with it the rise of defendants had been accurately charged with anotherjurj’ power movement. The Fully In We would also prohibit judges and prosecu violating the laws of the government, but also who indicate formed Jury Association FIJA ii seeking to toss from striking potential jurors on the laws themselves. This enabled the reform the American court system, which has a willingness to vote according to their con people to define for themselves thenature and been invested with incrementally stolen sciences, or who question the law, and would extent oftheir tights, and thus to remain mas to take a power, and would return that power to our ju stop the practice of requiring jurors ters, and not servants, of the government. they will ries, where it properly resides. In the process, false and unenforceable oath that During strictly on the facts and disre historic struggles for liberty, the jury we would hope that a century’s accumulation judge the case dictates played apivotal role. And the power of the of laws which have not had the benefit ofade gain their opinions of the law or the jury was naturally subjected to attack by the quate review by common law juries would fi of individual conscience. State. Jwypowerrtceded whenevertheState nally be subjected to community review, and FIJA began in the summerof 1989, when this gained powe and reasserted its pm-eminence appropriate adjustments made. writer joined Larry Dodge in the tiny, remote as the need became acute. For centuries, task This will serve to bring the law into closer town of Helmville, Montana to begin the whenever all use has failed to keep govern national organization devoted to alignment with community standerds andwill, of creating a ments in line juries have risen to the task. perhaps paradoxically, increase the respect rescuing the jury system from judicial and p0-

JUNE 1992 / The Advocate 109 litical emasculation. TheFUA movement has county. Don Doig was born in Bozema,r, Montana. A 1972 graduate of Montana State University, he evolvedihfo aremärhbte coalilionwhich has As of this writing, FIJA legislation or Consti worked towardaPh.D inmicrobiology, special izing in research on leukemia. He decided his active organizations in over 40 states. As this tutional amendments have beenintroduced or time would be more productively spent working is written, over 600 articles have appeared in to improve the political climate In this country, sponsors identified in thelegislatures ofnine which he has done as a writer, researcher, and the print media: all sorts ofjournals, newspa teen stales, with bipartisan support. The legal political activist. pen, and newsletters, large and small, from establishment can usually be found slinking across thepolitical and cultural spectrum. Ap around behind the scenes working against pearances on radio talk shows and coverage FIJA, but given the rate of growth of FIJA and by television and radio news programs, com its grass roots popularity, the handwriting has puter bulletin boards, short wave radio and lit been clearly affixed the a number of state erature distribution at conventions, rallies and SUGGESTIONS FROM THE house walls. Our legislative sponsors are FULLY INFORMED JURY demonstrations have also helped to spread the typically enthusiastic and knowledgeable ASSOCIATION word. about the issue. In excess of 400,000 pieces of FUA literature IF YOU’RE CALLED FOR FIJA holds conferences and an annual conven JURY DUTY.. - have been distributed directly from national tion. Pending 501c3 non-profit status will headquarters, and local activists have printed enable us to expand our educational activities Show up, of course. Should this happen law, just remember thousands more. To date, millions people FUA promotes a "National Jury before FIJA becomes still flurther. that it is always your right to decide on the the exact figure is of course unknowable Rights DaylWeek", September 5-11, which justice of any law you’re being asked to havebeeninformedthat they have more rights apply to the accused. So if the judge features ralliesacross the country. In 1991,six insists that you must consent to follow and than they knew, and the response has been state governors signed Jury Rights Day proc apply the law as he or she describes it, do very, very positive. not be intimidated: you may in fact safely lamalions declaring September 5 to be "Jury follow your conscience. FTJA has received the enthusiastic support of Rights Day" in their states. Montana, Iowa, groups as diverse as the delegates to Utah. While you cannot be punished for voting the 1990 Alaska, Indiana, Wisconsin, and Sep your conscience, you may be harassed National Rifle Association convention if not tember 5 is the day the Edward Bushell jury interrogated before or after serving, rep their central bureaucracy, Gun rimanded, or possibly even disempan Owners of acquittedWilliam Penn on trial in London in eled if you urge other jurors to do like America, and dozens of state and local gun 1670 for preaching an illegal religion, against wise; unbelievably, it has happened. But rights organizations; the Congress of this, jurors are not bound to do anything Racial the instructions of the court. For the jury against their wills, nor bound by oaths Equality CORE, the South Carolina was fined, and four were thrown in prison. given under duress, nor are they required branches of the NAAG’ and Rainbow Coali When they were finally released nine weeks to return a unanimous verdict. tion, theBlackandCajunCaucusesintheLou lateron a petition of habeas corpus, the deci You shouldn’t look at jury duty as an isiana legislature; the onerous task which is to be avoided if Platform Committees of sion firmly established the principlethat jurors possible. For one thing, it’s your chance the Republican Parties of Iowa and Nevada, were not to be punished for their verdicts, and to do some real good for yourself and and the national Republican Liberty Caucus; that they were free to follow the dictates of community. In many cases, this may mean voting to convict someone whose the national Libertarian Party and many state conscience. behavior is truly dangerous to life, liberty, and Libertarian property or pursuit of happiness. local Party groups; the Cali While we would not claim that juries can pro fornia Green Party, andGreens from across the nounce laws unconstitutional in any sense be In other cases, it may mean acquitting county; the American Hemp Council, someone because the evidence to convict yond theirrightto refuse to convict aparticular is not convincing, or because the law or NORML, the Action Network and defendant because they believe the law to be its application to the accused person ap drug reform groups across tile country; Con pen wrong. Defense of the rights of the unconstitutional or in violation of the Bill of citizens of your community is the whole itutionalist/conservativeftax- protest/ Chris Rights or because police procedures appear point of a jury system, and those include tian patriot/populist groups by the dozens; the the rights ofthe accused and of the jurors to have violated the defendant’s rights, it is themselves. Justice therefore demands Oklahoma chapter of the National Hispanic clear that trial by jury does have an important that common law jurors insist on their Democrats; the death penalty focus group of right to consider both the facts of the case role to play in enforcing and protecting the and the merits of the law. the northern California ACLU and ACLU a Constitution and Bill of Rights. They appear tivists across the country; seat belt and helmet For these reasons, we urge you to regard to be in need of a great deal of last-ditch de jury service as an opportunity, a right lawopposition groups; home schoolers and al fense. We hope that FUA canin fact contrib worth defending, or a personal duty, de ternative medicine practitioners and advo spite whatever obstacles may be thrown ute usefully to protecting the rights of all in your path. Since most states select ju cates; both pro-choice and pro-life activists; Americans. rors form voter registration lists, consider two retired state Supreme Court Justices and the chance to serve on a jury as another DON DOIG reason to register to vote! more and more honest judges are coming for National Coordinator, FUA ward, though still not many, several law pro P.O. Box 59 fessors, and many criminal defense lawyers, including Public Defenders from across the Helrnville, MT 59843 406 793-5550

JUNE 1992 / The Advocate 110 ANSWERING THE HARD QUESTIONS ABOUT "FLJA," THE FULLY INFORMED JURY ACT

Larry Dodge

While on my road trips, in meetings, talk In other words, failure to inform juries of vote according to his own conscience, as shows, and media interviews, the same or their rights breeds anarchy. FIJA provides there is at least a possibil similar questions come up again and ity that one or more jurors would not go again, which has encouraged meto come Four states Indiana, Oregon, Maryland, along with the rest, thus hanging the jury up witharepertoireof satisfyinganswers. and Georgia already have general provi with one or more guilty votes. Chances These I want to share with you, since you sions in their constitutions acknow for justice might then improve, via an may need to respond to similar questions ledging that juries may judge law, and other trial, perhaps a change of venue, or during the campaigns ahead, though I twenty-two other states have the same a different judge, and certainly another make no claim that mine are the best or provision included in their sections on jury. only answers. freedom of speech or libel.To my knowl edge, no chaos has resulted because of Further, victims of crimes who do not Most of these answers are to questions these provisions. fmd satisfaction in a criminal trial verdict which arisefrom a basic misunderstand have, with fair success, been able to sue ing-that fully informing jurors will Couldn’t thejury convict someone of a perpetrators for damages. In other in- somehow give them new rights and pow worse crime than the one he is charged stances, crime victims who were un ers. It will not, of course. But it’s been with? happy withverdictshanded down in state so long since jurors were told the truth courts have been able to have defendants about their right to judge both law and No. Juries do not and would nothave the tied in federal courts on other charges, fact, and to voteaccording to conscience, power to escalate or invent charges often forviolating their civilrights. that the idea seems novel-and is new to against a defendant. Their power may many people. onlybe exerted in the direction of mercy, Do jurors have the right, or just the never of vengeance. Nor can juries power, to judge the law?" That is why it is importantto make it clear "make law" by which to convict a defen that FIJA "would require trial judges to dant. That remains the job of the legisla They have both. They have the power, resume the practice of reminding jurors ture. They may, however, reduce the because in a jury system, no one can tell of their rights"-before, during, andafter charges against an accused person, pro the jury what verdict it must reach, nor your replies to the kinds of questions vided the lower charge is a less serious restrict what goes on in jury-room delib listed below: form of the same crime he was originally erations, nor punish jurors for the verdict charged with. The decisions of juries do they bring in, nor demand to know why Won’t WA lead to anarchy, with ju notand would not establish precedent for they reached that verdict. It is no accident ries judging the law? future cases. that our nation’s founders Provided for appeals of guilty verdicts, but not of ac FIJA is actuallyan antidote to the kind of What if the jury is prejudiced in favor quittals: they intended the jury to have the "anarchy" we’re already experiencing as of the defendant, and lets him go even power to halt a prosecution. a byproduct of passing more laws than though he’s clearly guilty? people can obey, an anarchy which helps They have the right, because each juror explain both soaring crime rates and This is the "corrupt jury" problem, and is partially responsible for the verdict overcrowded prisons. When juries con happens periodically withor withoutjury returned, thus for the fate of the accused sistently refuse to convict people of instruction in their right to judge the law. individual-and for every responsibility breakinga certain law, the incentive is for Jury members should be randomly se there is a corresponding right. In this lawmakers to change or erase it-lest lectedfrom the population as a whole. If, case, that is the right to consider every they lose the next election. Whenthe law instead, a jury is selected so that all its thing necessaryfor him or her to votefor books become cleansed of unpopular or members come in determined to acquit a a just verdict. That includes evidence, the confusing laws, the rate of compliance guilty person, it is likely to do just that, defendant’s motives, testimony, the law, with the remaining laws will be high be no matter what it’s told or not told. For circumstances-whatever, including the cause they will enjoy public respect and this to happen virtually requires that both juror’s own conscience. Understanding. the prosecutor and judge be corrupt, as well, taking no steps to see that at least Additionally, any restrictions placed Additionally, whenever jurors end up some of the jurors are notprejudiced. In upon the options the jury may exercise in apologizing for convicting him which is short, if the defendant faces fourteen peo fulfrlling its responsibility to judge the quite often, nowadays, and then later ple, all of whom favor letting him go free defendant may be considered violations find out they had the authority to vote regardless of the evidence, he will go of his or her right to a fair trial. according to conscience, but weren’t told free. about it or worse yet, were told they Finally, when one. gets right down to it, could not their own respect for the law Even under these circumstances, ifjurors there is precious little difference, except and ourjustice system can onlydiminish. were instructed that each of them could in academic legal discourse, between a

JUNE 199 ITheAdvocate 111 rightand a power. Most dictionaries rec minorities will be able to defend itself law enforcement, and the very unequal OgniEe thisby listing them as symptoms. via jury veto power. kinds of deals which are regularly pushed upon defendants by the prosecutor and/or The real payoff is that government, the judge outside of the courtroom too Wouldn’t our courts be flooded with which grows in power and intrusiveness often based upon the accused person’s jury trials if FIJA were to become with every escalation of distrust and in- appearance, background, and ability to law?" tolerance between warring factions of pay, and "equal protection" takes on the citizens, may lose its grip as trial juries. appearance of an ideal which draws a lot It’s probable that the number ofjury thals resume their check-and-balance func more lip service than real concern. involving some of the least popular and tion, and "live and let live" re-emerges as most frequently broken laws would in- the American ethos. Juries generally become part of the prob crease, until prosecutors began choosing lem onlyto the extent that both the prose not to attempt convictions on them any What happens if the jury nullifies a cution and the defense have done every more,police began letting up on enforce - law? thing in their power to select the least ment, and legislators began reading the knowledgeable and most manipulableju writing on the jury-room walls. But the This is not generally a problem. We have rors possible. If those making an equal peak should soon pass. And a reduced centuries of experience with jury veto protection argument really cared, they’d number of costly appeals to higher courts power, and generally laws that protect ask for laws ensuring random selection is expectable, because more people peopleagainst invasions of theftproperty of jurors from as broad abaseas possible. would feel they’d receivedjustice at their or threats against their safety, are sup original trials. ported by the community asa whole, and are enforced by jurors. Maryland and In FDA may provide a partial answer, be- Ultimately, though, one must ask what’s diana report good success withnullifica cause chances of equal treatment of de more important, fast service at your local tion instructions. fendants would appear to increase if the courthouse, or justice for accused indi jury were to receive complete and accu viduals, and real-world feedback to the It is both elitist and erroneous to accuse rate instruction in its veto powers, not lawmakers? the ordinarycitizens of this country ofnot because information begets fairness, but being able to govern themselves whenthe for at least two other reasons: 1 if jurors Wouldn’t there be a lot of variation opportunity or need arises. Political sci are lied to about theft rights and powers, from place to place in jury verdicts, ence studies show that people become a certain percentage of them can be ex according to local conununity stand extremely conscientious, cautious andre pected to see through the falsehood, then ards? sponsible when they sit on a jury-more to rationalize reciprocating that dishon so than at practically any other time in esty by lying to one or both attorneys and Perhaps, though it could hardiy compete their lives. the judge during the selection process. with the variations in verdicts and sen Just what they may be covering up or tences already being handed down by What would: become of the practice of misrepresenting, and why, will certainly different judges.... basing verdicts upon legal precedents? vary from jury to jury, and that’s exactly what the doctrine ofequal protection rails It might prove Irue that informed-jury against, 2 When both prosecution and verdicts would vary more than they do The role of case law, or precedent, would defense know in advance that the jurors now from place to place with respect to remain useful as advice for all parties to will be fully informed of their power to certain types of offenses. Tolerance of a trial, but its use as a basis for verdicts judge both law land fact, their jury selec abortion, drugs, pornography, gun own in current jury thals would end. A major tion criteria can be expected to change ership, etc. might be higher in some com objective in fully informing juries oftheir accordingly. Both sides would face an munities thanothers. Butthen, what’s the rights and powers is to provide ever- incentive to fmd jurors able and willing merit in trying to force-fit a diverse soci evolving feedback to our legislators, so to consider not only factual but also ety into one huge homogenous mold, in that regular adjustments can be made in moral-philosophical questions in search obliging every person or every commu the rules that we live by. of justice, especially in those cases where nity to conform to some central author the merits or the applicability of the law ity’s notion of how to behave? We sug The idea is to match our laws to our may be lat issue. The result should be gest that if your act doesn’t go over lo standardsof right and wrong on an ongo bothbetter-quality juries and more equal cally, walk. ing basis, so that gaps will no longer ity under the laws that they work with. developbetween them. This kind ofcon Actually, the overall thrust and effect of sistency cannot be had when "precedent Wouldn’t FIJA cause a great increase FIJA should be to promote consistency- requires" that the same verdict be found in the number of hung juries?" in the form of tolerance-everywhere. It for a modemcase as was found in similar is already happening, as different kinds cases in the past. When gaps between In the short run, perhaps, as laws which of Americans are joining together in coa what’s moral and what’s legal get too are hard for people to understand, iden litions to make FIJA into law. Most peo large, we risk "anarchy" on the one hand, tify with, or apply are evaluated byjuries. ple, it turns out, would rather secure their totalitarian intervention on the other. As "mercy buffers" between the power of own liberty than damage someone the state and the accused individual, and else’s-it’s just that our political system Wouldn’t FIJA violate our Eourteenth betweenmajorities and minorities, a cer spawns and promotes rancor between Amendment right to equal protection tain frequency of inability to reach a con competing special-interest groups,where under the law?" sensus is to be expected. But that’s the one group’s gain is usually another’s point it’s., important for that there re loss. "Equal protection" is already tough to mains at least one institution of govern guarantee, given the differences in qual ment which must achieve unanimity to FIJA will also make it more difficultfor ity between judges, prosecutors and de make a decision, since most series of majorities to deny the rights of minori fense attorneys who may become in usurpations of rights in general begin ties, because any minority and we’re all volved in any given case. Add to them with attacks on the rights of unpopular our media-assisted fads and fashions in minorities or individuals.

JUNE 1992 IThe Advocate 112 On the other hand, juries always have a respolisibility to identify, and sometimes to determine an appropriate pupJhmt for people who damage the social fabric of their communities, When the thai is GUIDES TO THE LEGAL TRADITION: REFERENCES over, other members of the comtnunity often want to know how and why the verdict was found. Thisexpectation pro vides a strong incentive for the jurors to make a serious attempt at unanimity. When that incentive isn’t strong enough, and a long series of hung juries on cases involving a particular law occurs, it sends Anonymous, "Note: The Cianging Role of the Jury in the Nineteenth Century", Yale Law Journal a powerful message to lawmakers that. 74, No.1, 170-192 Nov. 1964. Focuses on the erosion of july veto power during this period. reform is necessary. Such a series may reflect public demand formore precision, Barkan, Steven E., "Juiy Nullification in Political Trials", Social Problems 31, No.1, 28-44 Oct. fairness, latitude, 1983. Also in Mike Tiinko, Jury Nullification... History of the impact of jury veto power on appropriateness or important political conflicts, in which the people resisted oppressive government policies and were other features in the law. But the beauty arrested, only to be freed by their fellow citizens. Particular emphasis on the Vietnam war protest of feedback from juries is that it is rarely movement, and denial of jury nullification as a means to suppress dissent a statement of special interest: hardly ever do all twelve people on a jury share Gray and Shins Justices, Dissent: Span and Hansen v. Us.. 156 U.S. 51, October Term, 1894. a single political goal or viewpoint, and These are the opinions of the two dissenting justices on the case which effectively ended routine the chances that all the people on a series instruction ofjuries in their right to judge both law and fact The majority ruled that while jurors do of juries will do so are utterly remote. have the power to nullify the law, judges need not tell them about it. Green, Thomas Andrew, Verdict According to Conscience: Perspectiveson the English Trial July, The relative frequency ofhung juries can 1200-1800; University of licago Press, 1985. History of the English common law jury. therefore be read as a measurement of true public sentiment about the law. The Hans, Valerie P. and Vidmar, Neil, Judging the Jury, New York: Plenum, 1986. Discussion of more responsive our legislatures become empirical evidence thatjurors behave responsibly when given nullification instructions. to that measurement, the stronger the as sociation between community moral Horowitz, Irwin A., "The Effect of Jury Nullification Instruction on Verdicts and Jury Functioning standards and the law will become, and in Criminal Trials", Law and Human Behavior, 9, No.1,25-361985. Controlled study of the effects the fewer hung juries there will be. giving of jury nullification instructions; responsible behavior is seen to be the norm. Horowitz, Irwin A., "The Impact of Judicial Instructions, Arguments, and Qiallenges on Jury LARRY DODGE Decision Making", Law and Human Behavior, 12 No.4,439-453 1988. See above. National Field Representative Fully Informed Jury Association Howe, Mark DeWolfe, "Juries as Judges of Criminal Law", Harvard Law Review 52, 582-616 P.O. Box 59, 1939. Discussion of the history of stare constitutional provisions for jury veto power and attacks Helmville, MT 59843 upon this power by the judiciary. 406 793-5550, Jacobsohn, Gary J., "The Right to Disagree: Judges, Juries, and the Administration of Criminal LarryDodge Justice in Maryland", Washington University Law Quarterly. Vol.1976, 571-607. A discussion of is ascenicpostcardpublLsher current practice with regard to instruction on the power of nullification as required by the Maryland and dLslrubutor, baded in Helmville, Mon state constitution. tana. A long time environmentalist, writer and political activist, he holds a Ph. D. in Lehman, Godfrey D., The Ordeal of Edward Bushell, Lexicon, San. Francisco, 274pi 1988. sociology front Brown University, and has Available from the author, 333 Keamy Sliest, San Francisco, CA 94108. Historical novel about the taught at the State University ofNew York trial of William Penn and the imprisonment of the recalcitrant jurors. An absorbing and well-re at Plattsburgh and at the University of searched story. Montana in Missoula. He is founder and Field Scheflin, Man W., "Jury Nullification: The Right to Say No", Southern California Law Review 45, Rep resentative of the Fully Wormed 168-226 1972. An excellent general legal history of the doctrine of jury nullification. Jwy Association. Scheflin, Alan and John Van Dyke, "Jury Nullification: Contours of a Controversy", Law and Contemporary Problems 43,4,51-115 Autumn,1980. The best, and most up-to-date general study of the legal tradition of jury nullification, and the attacks on this fundamental right of free citizens.

Spooner, Lysander, An Essay on Trial by Jury, 224 pp 1852; reprinted in Mike Timko, Jury Nullification.... Lysander Spooner was a Massachusetts lawyer whose writings remain classic The Bill ofRights is more than a document, defenses ofindividual liberty. This book-length essay on the common law jury is a passionate defense more than a political expression, it is, in of the fully empowered jury as a final barrieragainst tyranny. America, a way of life. It encompasses everything we do in our daily life from the Timlo, Mike, Jury Nullification, Volume 1, LIbertarian Mutual Press, Los Angeles 1987. Contains expressions we make, read or hear about, to reprints of the Spoonerand Barkan articles, above, and Timko’s own lead piece on using the initiative the safety and sanctity of ow homes, to the process to require by law that juries be given a nullification instruction. Order it from Mike Tunko, religious belief we choose to follow, to the Box 25908, Los Angeles, CA 90025. Quantity prices available. protection afforded to us under the law. JOE B.CAMPBELL President-Elect Kentucky Bar Association W. Main at Kentucky River Frankfort,Ky 40601-1883

JUNE 199 ITheAdvocate 113 CHAPTER 9

Constitution offlCentuckp Section 2:

Ytbsoute and arbitrary power over ives liberty ant property offreemen eKjsts nowhere in a republic1 not even in tile largest majority.

JUNE 1992 ITheAdvocate 114 A SLEEPING GIANT: SECTION II OF THE KENTUCKY BILL OF RIGHTS

Allison Connelly

Dr. Thomas Clark concludes that Ken ing v. Kroger, Ky. 691 S.W.2d 893, 899 after slavery was abolished by the pas tucky’s first Constitution-that of 1985. Clearly, it is time to wake this sage of the 13th, 14th, and 15th amend 1792-was an "incongruous mixture of sleeping giant and use it to challenge ments to the federal constitution, Ken fear, doubt, faith and hope." T. Clark, A arbitrary practices by police officers, tucky was forced to update and modern History of Kentucky, at 95 1960. This prosecutors, judges, correctional offi ize its constitution.For this reason, afmal description could easily apply to Section cials and other state actors, who exercise constitutional cony ention was held in 2 of Kentucky’s present Bill of Rights. any power over the lives and liberty of 1890. Still, Section 2 remained the same. This section broadly proclaims: accused and convicted citizens. Accord As a result, it has been left to the courts ingly, in this time of shrinking constitu to interpret Section 2 and give meaning Section 2: Absolute and Arbitrary tional protection at the federal level, we and effect to its expansive and beautiful Power Denied. Absolute and arbitrary must rediscover our state constitution to words. power over the lives, liberty and prop champion the cause oflife and liberty and erty of free men exists nowhere in a give it meaning. Moreover, such an ap II. THEMEANINGOF SECTION republic, noteven in the largest major proach makes good legal and practical TWO sense. While the u.s. Constitution de fines the minimum rights guaranteed an Christened the "great and essential prin The history of this unique constitutional individual, state constitutions may grant ciple of liberty and free govern protection against the exercise of arbi more expansive constitutional protec ment...which is indispensable to the hap trary official power, reflects Kentucky’s tions t their citizens. Prunqard Shop piness of an enlightenedpeople,’Tierng own search for a political, economic and ping Center v. Robbins, 447 U.S. 74, 81 Coal Company v. Smith’s Guardian, 180 social identity. Indeed, it is the ultimate 1980. Indeed, as a threshold matter, Ky. 815, 203 S.W. 731,7341918, Sec irony that Section 2, intended initially to Kentucky courts must first determine the tion 2 is unique in American jurispru safeguard the right of white males to hold validity of the law or action under the dence. Only Wyoming has a similar pro slaves, now embodies Kentucky’s due Kentucky Constitution before resorting vision, Wyom. Const., Article I, Sec. 7, process and equal protection guarantees. to its federal counterpart. Fannin v. Wil and that was borrowed from Kentucky. Thus, while Section 2 was born from the liams, Ky., 655 S.W.2d 4801983. However unique, it has been the courts in fear that slavery would be outlawed, and their expansive interpretationand defini from the doubt and mistrust that state and What follows then is an overview of Sec tion of "arbitrary," which has given the local officials could not safeguard the tion 2, it’s history, purpose, scope and section its true constitutional signifi nghts of their citizens, it has grown into application. it is hoped that by seeing cance. As one court observed: a powerful tool that limits arbitrariness in where the section has come from, and the exercise of state power. Conse how it has been judicially interpreted to [Slection 2 of our Constitution is sim quently, with faith and persistence in the reflect society’s changing values, we will ple. short and expresses a view of gov obligation of our state courts to correct be equipped to tap into its vast and un ernmental and political philosophy wrongs, this section contains the seeds of tested potential in the future. that, in a very real sense, distinguishes hope for the future in ensuring a fair and this republic from all other forms of just criminal justice system. L HISTORYAND PURPOSE OF government which place little or no SECTION2 emphasis on the rights of individuals in Despite its sweeping language, until re this society. Kentucky Milk Marketing. cently this powerful section has largely The constitutional history of Section 2 supra, at 899. been ignored by criminal law practitio has been shaped as much by historical ners. For example, while cases abound accident as judicial interpretations. Un Because of this view point, the courts finding oppressive governmental action der Section 4 of the Kentucky’s Consti have painted with broad strokes the defi with respect to property rights, there is tution, all supreme power rests with the nition of arbitrary. In Sanitation District only one criminal case that equates Sec people. Any power given to the state is No. I v. City of Louisville, Ky., 213 tion 2 with an accused’s right to a fair expressly limited by Section 2. However, S.W.2d 995, 1000 1948, the court po trial. Dean v. Commonwealth, Ky., 777 in the earlynineteenth century, "the peo etically exclaimed: S.W.2d 900 1989. Even Justice ple" only included white males over the Stephens has noted, "while there are nu age of twenty one. Thus, the Kentucky [Wjhatever is contrary to democratic merous cases which have been decided Constitution of 1849, the third constitu ideas, customs and maxims is arbitrary. on the basis of this bulwark of individual tional try, designed Section 2 so that it Likewise, whatever is essentially un hberty, the number is relative few, in only applied to "free men." In fact, the just and unequal or exceeds the reason view of its potential importance to our entire 1849 constitution was built around able and legitimate interest of the peo Jurisprudence." Kentucky Milk Market- the protection of slavery. Consequently, pleisarbitxary.

JUNE1992 /TheAdvocate 115 Moreover: Louisville v. Kuhn, 284 Ky., 684, 145 broad range of subjects encompassed, S.W.2d 851 1940; d-onequal protec- -different tests-haveevolved to determine No board or officer vested with govern don grounds City of Ashlargd v. Hecks, whethera constitutional violation has oc mental authority may exercise it arbi Ky., 407 S.W.2d 421 1966. curred. For the most part, these "tests" trarily. If the action taken rests upon parrot their federal counterparts. How reasons so unsubstantial or the conse Unfortunately, Section 2 has also been ever, a brief review of the court’s use of quences are so unjust as to work ahard used to thwart fairness and justice. For Section 2 reveals that in many instances ship, judicial power may be interposed example, it was held notto be an arbitrary the standards employed in its application to protect the rights of persons ad act by the legislature to prohibit integra are less stringent than the federal crite versely effected. Wells v. Board of tion of schools. Berea College v. Com rion. Education, Mercer Co., Ky., 289 monwealth, 123 Ky. 209, 94 S.W. 623 S.W.2d 492,494 1956. 1906. Likewise, in Mahan v. Bucha PROCEDURAL DUE PROCESS: nan18, 221 S.W.2d 945 1949, the Although emotionally compelling, such court concluded Section 2 was not vio The guarantee of procedural fairness language is not simple legal rhetoric, lated when Mahan’s parole was revoked which stems from both the 5th and 14th These words are the reasons for, and the despite his acquittal on a subsequent amendments of the U.S. Constitution, is philosophy behind, Section 2. Yet, crimi charge. Similarly, in Hines v. Common also encompassed within Section 2 ofthe nal practitioners have largely ignored the wealth19, Ky. 357 S.W.2d 843 1962, Kentucky Bill ofRights. Turner v. Peters, persuasive legal powers of these ideals. the court held Section 2 was notinfringed Ky., 327 S.W.2d 958 1959. Conse It is time to correct this neglect and began despite the fact Hines had an airtightalibi quently, Section 2 has been used to in- to test the true parameters of Section 2- defense. Hines had documentary evi validate regulations, ordinances, statutes the meaning of arbitrary power over life dence proving he was in prison at the time and even administrative actions. To in and liberty-in the representation of of the crime upon which he stood con voke federal procedural due process, it those in the criminal justice system. victed. Moreover, his claims of ineffec must be shown that a deprivation of a tive assistance of counsel were ignored. "significant life, liberty or property inter III. THE SCOPE OFSECTION est has occurred." Only then are the af TWO Still, while constitutional rights never fected parties entitled to notice and an change, the scope of their application opportunity to be heard. Fuentes v. Section 2 "was enacted as a safeguard to expands or contracts to meet new and Shevin, 407 U.S. 67, 79 1972. On the the individual in respect to his life, lib changing conditions. The wisdom and other hand, Section 2 has no such re erty, and property and has no connect-ion necessity of laws, regulations and prac quimements. Section 2 simply requires a with the appropriation of public funds." tices which, as applied to existing condi minimal showing that a party’s life, lib Commonwealth v. Johnson, Ky., 166 tions of the past, were routinely sus erty or property right has been affected in S.W2d 409, 412 1942. However, al mined, now probably would be rejected some manner by state action. Kentucky though Section 2 only protects individu outright as arbitrary and oppressive. We Alcoholic Beverage ControlBoard v. Ja als, it acts as "a curb on the legislative as must constantly challenge the past with cobs, Ky., 269 S.W.2d 189 1954. In well as on any other public body or public new and creative solutions. Section 2 is deed, in the final analysis, the ultimate officer in the assertion or attempted exer stagnant from disuse. We must make it question of whether or not state proce cise of political power." Sanitation Dis on our own. We must defme it and use it dural due process wAs granted revolves trictNo. 1 v. City ofLouisville, supra, at to advance progress, so that its words around the question of arbitrariness. 1000. Thus, Section 2 broadly encom grow, live and give meaning to our pre American Beauty Homes Corp. v. Louis passes the arbitrary exemise of power by cious constitutional rights. ville, etc., Ky., 379 S.W.2d 450, 456 any "boardor officer vested withgovern 1964. Arbitrariness is so broadly de mental authority." Wellsv. Board ofEdu IV. APPLICATiON OFSECTION fined that in this setting, it is simply cation, supra, at 494. Clearly then, Sec TWO. equated with "fairness." Id. Thus, if the tion 2 applies to every state actor, includ "state" acts outside its statutory powers, ing any administrative agency or officer, In applying Section 2, the function of the or did notafford the party fair notice or a who acts pursuant to governmental court is"to decide a test of regularity and fair opportunity to be heard, or if the authority. Similarly, because of the legality of [official] action...by the con action taken is not supported by substan breadth of Section 2’s language, the Ken stitutional protection against the exercise tial evidence, it is arbitrary. Id. For ex tucky Supreme Court has held it is the of arbitrary official power. Kentucicy ample, in Marcum v. Broughten, Ky., functional equivalent of bothfederal due Milk Marketing, supra at 899. Just what 442 S.W.2d307 1969, thecourtgranted process of law and equal protection of amounts to arbitrary power is a judicial a writ of habeas corpus to a prisoner law. Pritchett v. Marshall, Ky., 375 question. Brunner v. City of Danville, charged with capital murder. The court S.W,2d 253, 258 1963. Yet, Section 2 Ky., 394 S.W.2d 939 1965. Likewise, concluded that a successor judge had is evenbroader than the 14th amendment. the question of reasonableness or arbi acted arbitrarily for revoking Marcum’s A review of the decisions invoking Sec trariness of action "is one of degree and bail without any reason for the revoca tion 2 reveals it has been construed to must be based on the fficts of the particu tion. embody many of our most precious con lar case.& yles City Stockyard Company stitutional rights. Statutes, ordinances, v. Commonwealth, Ky.App., 570 S.W.2d In short, the opportunities to invoke Sec -regulations and administrative actions 650 1978. Thus, a legislative or admin tion 2 on state procedural due process have been invalidated under this section istrative fmding of fact is not conclusive grounds are enormous. Every unfair ac for overbreadth, Corn.’nonwealth v. on the court. U.S. Mining and Explora tion by state officials can be challenged. Foley, Ky., 798 S.W.2d 947 1990, for don Natural Resources Company v. City The fruits of such defiance may lead to a vagueness, City of Campbellsburg v. ofBeattyville, Ky., 548 S.W.2d 833, 835 trial type hearing to resolve disputes of Odewalt. Ky., 72 S.W.2d 3141903, for 1977. adjudicative facts. Kaelin v. City of Lou a denial of procedural due process, in isville, KY 643 S.W.2d 590 1983. cluding the right of cross-examination in an administrative hearing, Kaelin v. City ofLouisville, 643 S.W.2d 5901983., on While all of these principles are commnon substantive due process grounds, City of to Section 2 analysis, because of the OVEK8READThI AND VOID

JUNE 1992 IThe Advocate 116 FOR VAGUENESS Section 2 and Section 11 implicitly guar tection prong of Section 2, there simply antee a defendant the right to a fair trial. are not enough cases to determine the Because of the broad reach of Section 2, Dean v. Commonwealth, supra, at 905. value Section 2 can play in the defense of the distinction between procedural and Finally, there areno Section 2 cases that accused citizens. We must raise and liti substantive due process and the void for have used a strict scrutiny review for gate these issues in order to determinethe vagueness and overbreadth doctrines has determining whether fundamental rights boundaries Section 2 can play in the de been somewhat blurred by the Kentucky owed the criminal defendant have been fense of individuals. appellate courts. As such, Section 2 has abridged. Under federal due process been utilized to strike down statutes, or standards, a law that touches upon or CONCLUSION dinances and regulations that are over- limits a fundamentalright will be strictly broad or vague. Most recently, the Ken scrutinized, to insure that the law is nec Section 2 is a sleeping giant with the tucky Supreme Court struck down the essary to promote a compelling or over potential to change our world. We must 1988 electionreform statute on Section 2 riding interest of government. Skinner v. wake this bold giant and creatively raise grounds. Commonwealth v. Foley, Ky., Oklahoma, 316 U.s. 535, 541 1942. it, litigate its meaning and advocate zeal 798 S.W.2d 947 1990. The court held Clearly, it is time to test the parameters ously for its application. Only in this way, that the statute was facially unconstitu of Section 2 in this area. Certainly, the can we hope to give it the constitutional tional because it was vague and over- language ofSection 2, its inclusive scope significance itso richly deserves. broad in that it prohibited constitutionally and its definitionof arbitrariness is broad protected conduct, and was susceptible to enough to encompass a strict scrutiny ALLISON CONNELLY arbitrary and discriminatory enforce analysis of fundamental rights due indi Chief, Post-Conviction Branch ment. Id. at 951. In invoking Section 2, vidual citizens. We must push the court Frankfort, Kentucky 40601 the court noted the following: to reach this conclusion. The statute as written is so broad and EQUALPROTECTION CM USE subject to such a vast array of interpre tations that it must fail on due process The philosophy behind the equal protec and equal protection grounds. This stat- tion clause is thata government must treat ide is an open invitation to arbitrary, similarly situated individuals ina similar retaliatory, selective, trivial, and there manner.Thus, the equal protection clause SELECTED BIBLIOGRAPHYON fore unjust criminal prosecution. Id, at regulates the ability of government to THE CONSTITUTION 953. classify individuals for purposes of it ceiving governmental benefits or punish Bowen, Catherine Drinker. Miracle in Phuade4ihia: The Story of she Corastitu Although the court recognized a legiti ment. Although Section 2 has been used tional Convention, May to September 1787. mate state interest in honest elections, the as one part of Kentucky’s equal protec Boston: Atlantic Monthly press, 1986[tst court invalidated the statute using the tion clause since 1947, see Illinois Cen ed.,1966l. following test: tral Railroad Company v. Common wealth, Ky., 204 S.W.2d 973 1947, Collier, airistopher and James Lincoln Col For a facial challenge on overbreadth there was no analyticaltest established by lier. Decision in Philadelphia: The Consti grounds to prevail, real, substantial and the court until 1978. In Standard Oil tutional Convention of 1787. New York: basic constitution rights must be at risk. Company v. Boone Co. Board of Super Random House/Reader’s Digest Press, This Court has determined that KRS visors, Ky., 562 S.W.2d 83 1978, the 1986, A lively contemporaxy account of the actions and personalities in the Constitu 119.205 lacks minimal objective court resolved the issue of unconstini tional Convention. guidelines for its application and there tional discriminationunder Section 2 by fore threatens the constitutional rights holding: Rodell, Fred. 55 Men: The Story of the of all Kentucky citizens.Id. Constitution, with an introduction by Char U]n order to invoke those fundamental les Alan Wright. Harrisburg, PA: Stadcpole SUBSTANTIVE DUE PROCESS protections against the unfair admnini Books, 1986[lsi ed., 1937]. A day-by-day stration of the law that is not itself un chronicle of the Constitutional Convention, The constitutional, the unequal treatment which gives a dramatic iendering of the dy federal courts have received a lot of namics of the Convention’s business. criticism for invalidating statutes on sub must amount to a conscious violation stantive due process grounds. That is be of the principle of uniforrnity.Id. at 85. Rossiter, Clinton. 1787: The Grand Con cause the U.S. Constitution speaks only vention. New York: Macmillan, 1966. An of a procedure due an individual. Our In Humnteldorf v. Hummeldorf, account of the Constitutional Convention courts, however, have never been subject KyApp., 616 S.W.2d 794 1981 the against the larger background of the condi to such criticism because the power to Courtof Appealsstruck down the divorce tions and events of the year 1787. nullify legislative and quasi-legislative venue statute As unconstitutional for fix acts is implicitin the language of Section ing venue in the home county of the wife. Rutland, Robert. The Ordeal of the Consti tution: The AntVederalists and the Ra4tica- 2. Yet, decisions pertaining to criminal The court held that the law intpennissibly Lion struggle of 1787-88. Boston: North law are woefully lacking in this area. discriminated against men in violation of eastern University Press, 1983. Details the Nowhere does a Kentucky court invoke both Section 2 and the Equal Protection political strategies, compromises, and disap Section 2 to hold that certain require Clause of the 14th Amendment. In find poinrinents of the Constitution’s opponents, ments are "implicit in a concept of or ing the statute arbitrary, the court said the and presents some materials on the broader dered liberty," Pal/co v. Connecticut, 302 statute was "unjust and unequal" and "ex political philosophy of the Antifederalists. U.S. 319 1937, or that certain rights are ceeded the reasonable and legitimate in "fundamental to the American scheme of terest of the people." Id. at 797. Once Van Doren, Cart. The Great Rehearsal. justice," WestportCT: Greenwood Press, 1982 re Duncan v, Louisiana, 391 U.S. again, the court has gifted us with lan print of 1948 edition. A readable poptilar 1451968, or that convictions cannot be guage to use in the future. By analyzing history of the Philadelphia Convention and brought about by methods that "shock the our cases from a policy standpoint, we the delegates who framed the Constitution. conscience", Rochin v. California, 342 will be able to argue Section 2’s applica US. 165 1952Jnfacconlyrecentlydid tion. Then again, while there are more the Kentucky Supremne-Coun -hold that criminal cases devoted to the equal pro-

JUNE1992 IT/ic Advocate 117 APTER 10

CO17[5’YKFQ1TIOf1[ ‘TJ-[’E wt[I01W yfl4q!Es

fRJgfits of accused? In alt criminal prosecutions, the accused sflat have the 2ssistance of Counsetfor his defence.

JUNE 1992 ITheAdvocate 118 SOME BICENTENNIAL OBSERVA TIONS ON THE SIXTH AMENDMENT RIGHT TO COUNSEL

Edward H. Johnstone

teenth Amendment.. . in a capital A bill of rights Ar what the people are or other serious cripes had no right to entitled to against every government on legal representation. Thisprocedure was case.., it is the duty of the court, earth.... based on the premise that a judge would whether requested or not, to assign insure a fair and impartial trial and the counsel for him as a necessary requisite Thomas Jefferson assumption that the Crown would not of due process of law; and that duty is charge an individuJ with a serious crime not discharged by an assignment at Politicizing criminal issues in the name ifhehadadëfense. The Amercancolo such time or under such circumstances as to preclude the giving of effective aid of "law and order" is a fact of modern nists rejected these limitations and thus American life.A dangerous side effect of the Sixth Amendment was adopted to j,n the preparation and trial of the case. this "law and order" movement is a cor provide the right of counsel to all criminal responding decline in the importance so defendants. ciety places on the Bill of Rights and on For seven years following Powell, the the lassyers who protect those rights. Today, the law recognizes that the Con right to counsel instate court cases, other in than those involving the death penalty, stitutional right of counsel attaches continued toplowiarow ofuncertainty. As we celebrate the 200thanniversary of bothstate and federal criminal proceed our 0111 ofRights onDecenter 15, 1991, ings. While the Sixth Amendment has In Belts v. Brady, the Court adopted a it is important to consider the risk that the always attached to federal criminal cases, "fundamental fairness" test to determine Bill ofRights may become empty rhetoric the history of its extension to state actions whether a state court’s failure to appoint subordinate to the task of fighting crime. reveals a laborious course. counsel for indigent defendants in non- Open and frank discussions of the Bill of capital cases was violative of due proc Rights during this bicentennial year will The application of the right to counsel in ess. The uncertainty lingered. raise complex and controversial issues state criminal proceedings was initi6ally and hopefully elevate its importance in addressed in Powell v. Alabama. In Public defenders are the modern our nation. While each Amendment is Powell, nine minority defendants were patriots carrying the torch which significant, this article is limited to the charged with the rape of two white girls the founders ignited 200 years Sixth Amendment right to counsel. in the in rural Alabama. This was a capital of belief that it is the conduit for preserva fense. Although the thaI court appointed ago. tion of other guarantees afforded by the all 18 members of the Scottsville bar to 8111 ofRights. appear for the defendants at arraignment, on the morning of trial, no specific de During the next twenty years, hundreds The Sixth Amendment provides: fense attorneys had beenassigned. At the of non-capital cases against indigent de beginning of trial, the judge requested fendants passed through the state courts. In all criminal prosecutions, the ac legal assistance for the defendants but In some cases lawyers were appointed, in cused shall enjoy the right to aspeedy stated that no lawyer would be required others they were not. Finally, in 1963, the and public thai, by an impartial jury of to appear. With this "appointment," the Court again considered the applicability the stare and districtwherein the crime trial was conducted and each of the nine of the Sixth Amendment right to counsel shall have been committed. . . and to black men sentenced to death. in state court proceedings. In Gideon ‘t be informed of the nature and causes of Wainwright, the Court examined the the accusatiolz to be confronted with The convictions were appealed to the pro se habeas petition of Clarence Earl the wimesses againsthim; to have com United States Supreme Court. The Court, Gideon. Gideon was a small time gam pulsory processfor obtaining witnesses over 140 years afterratification of the Bill bler who had been thed and convictedfor in his favor, and to have the assistance of Rights, held that due process of law theft. In his hand written petition, Gideon of counsel for his defense. under the Fourteenth Amendment neces argued that the Constitution guaranteed sarily includes the right to counsel at each an attorney to all criminal defendants. The rights to equal justice, judicial fair and every stage of a capital case. Speak The Court agreed with him holding that ness and protection from arbitrary gov ing for the Court, Justice Sutherland, due process requires the appointment of ernmental actions which serve as the stated: counsel for criminal defendants in all foundation for the Sixth Amendment state and federal felony cases. As Justice have stçiod, at least in theory, for over700 [W]e are under the opinion that.. . the Hugo Black so eloquently said: years. The right to counsel arose as a necessity of counsel was so vital and Component of the concept of equal jus imperative that the failure of the thai [R}eason and reflection require us to tice. At common law, those chargedwith court to make an effectiveappointment recognizethat in our system of criminal misdemeanors were provided counsel of counsel was likewise a denial of due justice, anyperson haled into court, While those accused of felonies, treason process within the meaning of the Four- who is too poor to hire a lawyer, cannot

JUNE 1992 ITheAdvocate 119 be assured a fair thai unless counsel is is ominous because it reflects a prefer Bill ofRights, we salute the lawyers who provided for him. This seems to us to ence for an inquisitorial system that * in the face of adversity dedicate them be an obvious truth. Governments, both regards the defense lawyer as an im selves to its preservation.Yet we must be state and federal, quite properly spend pediment rather than a servant to the watchful that the right of counsel is not vast sums of money to establish ma cause of justice. diluted as a victim of inconvenience. chinery to try defendants accused of Should that happen, the remaining provi crime. Lawyers to prosecute are every As government moves more deeply into sions of the Bill of Rights may likewise where deemed essential to protect the areas of our livesonce considered private fall. Public defenders are the modern public’s interest in orderly society. and with the judicial pendulum swinging patriots carrying the torch which the Similarly, there are few defendants towards the government and away from founders ignited 200 years ago. charged with crime, few indeed, who individual rights, it is critical that the fail to hire the best lawyers they can get Constitutional rights of the accused be EDWARD H. JOHNSTONE to prepare and present their defenses. fully protected by capable and motivated Chief Judge That government hires lawyers to lawyers. The capability and motivation United States District Court prosecute and defendants who have the of lawyers retained by the affluent is a Louisville, KY money hire lawyems to defend are the matter within the control of the individ strongest indications of the widespread ual. Yet for the indigent, the burden of Judge Johnstone was appointed United belief that lawyers in crimin3l courts insuring capability and motivation rests States District Judge for the Western Dis are necessities, not luxuries. in large part upon society’s willingness trict of Kentucky on October11, 1977, and to support and fund public defender pro entered on duty October 13, 1977. He Gideon settled the uncertainty by recog grams. served as Chief Judge, October 1, 1985- nizing that the criminally accusedhave a September 17,1990, retaining activestatus Constitutional right to legal representa While candidates and elected officials as districtjudge. Heserves as a member of tion in state court felony proceedings. promise and deliver increased budgets the Judicial Conference Committee on the for prosecutorial and law enforcement Administration of the Bankruptcy System, While the original Amendment man efforts, support for public defenders is and as Chair of the Kentucky Task Force dated the right to counsel in criminal waning. Salaries for full and part time on Death Penalty Cases since 1987. proceedings, it took 180 years to etch this public defenders in Kentucky are low. principle into mainstream Constitutional Defense attorneys who contract with the He is a graduate of the University of Ken thought. This sluggish development is public advocacy department and those tucky, receiving a J.D. degree in 1949. attributable to the lack of concern from appointed in federal cases are similarly Prior to his appointment to the federal those in our society who control the pace under compensated.14For capital cases in bench, he served as Judge of the 56th Ju at which ideological, procedural and to Kentucky, the maximum fee the Depart dicial Circuit of Kentucky, and was aprac some extent legal concepts develop. For ment of Public Advocacy i4ble to pay a ticing attorney in Princeton, Kent uckyfor the lawfirm: Johnstone, the affluent, liberty, dignity and the right private attorney is $2,500 - an amount over 25 years with of legal representation is less dependent below that commonly billed for a misde Eldred & Paxton. upon a Constitutional guarantee: Unfor meanor thal or a relatively simply real tunately, the result is a system which has estate matter. FOOTNOTES fostered ambivalence* toward legal repre sentation for the accused. Provided an While society has yet to fully understand ‘As early as 1215, the Magna Carla provided to no one will we sel!, to no one will we "refuse or attorney is physically present, the public the needforcompetent representation, in delay, right or justice." presumes the attorney is competent and the judicial system, positive signs are on adequately prepared to represent the in the horizon. For example, the 1990 Fed 2 Prior to 1836, those accused of felonies and 848 other serious crimes were entitled to repre terests of the accused. However, those eral Anti-Drug Abuse Act, 21 U.S.C. sentation by counsel only with respect to ques intimately concerned with the criminal q4B and q9 provides increased tions of law. 6&7 Wm. lv, c. 114, sec. I l36. justice system know the importance of counsel resources in federal habeas providing experienced, motivated and cases. Further, members of the private 3J. Chitty, A Practical Treatise on the Common adequately compensated trial attorneys bar, recognizing the inadequacies of Law 1:406 ff’hiladelphia 1819 cited in 0. Feld to forcefully protect such rights. state-provided representation for death man, The Defendant’s Rithts Today 209-10 row inmates have, on occasion, donated 1976; B. Coke, The Third Part of the lns,wtes of the Laws of England 29 London 1797. Al Recent decisions and trends have in their services to these individuals. For the though conceding that the rule was well settled creased the burden upon those who rep most part, however, these volunteers do at common law, Blaclcstone denounced it stating: resent and protect the rights of the ac not regularly engage in criminal law For example n equipped under cused. County of River practice and are not to upon what face of reason can that assis v. 1 For side McLaughlin, the Court held that take public defender responsibilities. tance be denied to save a life of a man, whith an individual arrestedon a minoroffense yet is allowed him in prosecutions for every may be imprisoned up to 48 hours with We recognize the importance ofprosecu petty trespass? out seeing a judicial officer. tors, law enforcement officials and others in furthering the cause of justice. How 4W. Blackstone *355 cited in Powell V. Later, in McNeil v. Wisconsin 13 the ever, in the final analysis, the task of Alabama, 287 US 45 1931. Court eased limitations on police interro protecting the accused usually falls upon 4Powell v. Alabama, 287 U.S. 45, 63-65 1932. gation. Although a jailed suspect is rep appointed defense counsel. They sho4l- Prior to the adoption of the Federal Constitution, resented by counsel on a criminal charge, derthe burden of seeing that, in the crimi twelve of the thirteen colonies guaranteed all he may now be questioned on unrelated nal justice system, individual liberties criminal defendants the right to counsel. matters in the absence of his attorney. and dignity are notside-stepped orcheap 5SeeArgersinger v. Hamiin, 407 U.S.25 1972 The Court reasoned that the Sixth ened. This burden has often been shoul application of Sixth Amendmenttomisdemean’ Amendment right to counsel is offense dered in the face of overwhelming on; see also In re Gault, 387 U.S. 1 1967 specific. In a dissenting opinion, Justice case1lgads. public abuse and meager application of Sixth Amendment to juvenile de John Paul Stevens opined: pay. fendants. 6287 U.S. 45 1935. As a symbolic matter, today’s decision So as we celebrate and reflect upon the 71d.at7l.

JUNE 1992 IThe Advocate 120 8316 i6 U.S. 455 1942. counsel in the defense of indigents. Er Parse Farle ,570 S.W.2d 617 ICy. 1978 * attempts l’ publL defenders to secure death 372 U.S. 335 1963. 12111 SQ. 1661 May 13, 1991. penalty statistics forusein onping deathjenalty cases was described by the supreme Court of Id.; Nine years later inArgersinger v. Hamlin, 13 111 SQ. 2204 June 13, 1991. Kentucky as "asinine litigation.’ 407 U.S. 25 t972 the Court extended the Sixth Ainendtnen1htto counsel to criminal misde- 14 THEADVOCATE, Aug. 1990, at 7.

* ‘ . KRS 31.1704 provides a $1,250 fee cap See Lawson, Preswnrnj Lawyers Competent "unless the court concerned finds that special F7umçtal ,thts: Is it an afford- circumstances warrant a higher total fee." When at’ e iction , K . L. 9 t977-78 stress- the court makes such a findina, the fiscal court ing the necessity for experienced and competent must pay the ordered fee. Kl&3L2403.

SELECTED BIBLIOGRAPHY ON THE CONSTITUTION

Wood, Gordon S. The Creation of the American Republic, 1776-1787. New York: W.W. Norton, 1972 [1st ed., 1969]. Important contemporary account of the influence of republican ideas in America in the decade preceding the writing of the Constitution.

Adler, Mortimer. We Hold These Truths. New York: Macmillan, 1987.

Barbash, Fred. The Founding: A Dramatic Account ofthe Writing ofthe Constitution. New York The Linden Press/Simon & Schuster,

Kammen Michael. A Machine That Would Go ofItseft The Constitution in American Culture. New York Alfred A. Knopf, 1986.

McDonald, Forrest. Novus Ordo Seclorum: The Intellectual Origins ofthe Constitution. Lawrence, KS: University of Kansas Press, 1985. Mee, Charles L. Jr. The Genius ofthe People. New York Harper & Row, 1987.

Peters, William. A More Perfect Union: The Men and Events ThatMade the Constitution. New York: Crown Publishers, 1987.

Preiss, Byron and David Osterlund, eds. The Constitution ofthe United States ofAmerica. New York: Bantam Books, 1987.

Project ‘87. this Constitution: Our Endwing Legacy. Washington,DC: CQ Press/Project ‘87, 1986.

Vetterli, Richanl and Gary Brrer. In Search of the Republic. Totowa, NJ: Roman and Littlefield, 1987.

Ferris, Robert G., and James H. Charleton The Signers of the Constitution. With a foreword by Warren R Burger. A.rlington, VA: Interpretive Publications, Inc., 19861 1st ed., 1976] .Distributed by the National Park Service.

McGee, Dorothy Horton. Framers ofthe Constitution. New York: Dodd, Mead, 1987 [1st ed., 19681.

Cooke, Jacob E. Alexander Hamilton: A Biography. New York: Scribners, 1982.

Flexner, James T. Washington: The Indispensible Man. Boston: Little, Brown, Co., 1974.

Ketcham, Ralph. James Madison: A Biography. New York: Macmillan, 1971.

Morris, Richard B. Witness at the Creation: Hamilton, Madison,Jay and the Const itution. New York: Holt, Rinehart, and Winston, 1985.

Peterson, Merrill D. Thomas Jeffersonand the New Nation: A Biography. NewYork: Oxford University Press, 1970.

Wright,Esmond. Franklin ofPhiladelphia. Cambridge: Harvard University Press, 1986. Farrand, Max, at. TheRecords ofthe Federal Convention of1787. 4 vols. NewHaven: Yale University Press, 1987. The complete record of thedebates in the Philadelphia Convention, compiled from James Madison’s notes and other sources.

Hamilton, Alexander, James Madison, andJohn Jay. The Federalist Papers, ed. with an introduction by Clinton Rossiter. New York New American Library, 1961. Many other editions art also in print. The most famous defense of the Constitution, written in 1787-88 to Secure ratification in New York and still among the best guides to interpreting the document. Ketcham, Ralph, ed. The Anti-Federalist Papers and the Constitutional Convention Debates. New York: New American Library, 1986. Designed as acompanion volume to the Rossiter edition of The Federalist Papers, this book presents key Anti-Federalist writings together with selections from the debates in the Federal Convóntion. It also contains a useful bibliography and index. Kurland, PhilipB., and Ralph Lerner, eds. The Founders’ Constitution. 5 vols. Chicago: University of Chicago Press, 1987. The editors have brought together a large collection of documents to illustrate how the Constitution was conceived, ratified, and interpreted by those responsible for founding the nation.

Levy, Leonard W., ed. The Encyclopedia of the American Constitution. 4 vols. New York: Macmijlan, 1986. 2,200 signed, original articles by 262 leading constitutional scholars, on every constitutional topic from’Abington Township School District v. Schernpp" to ‘Zurcher v. Stanford Daily" with a complete index and suggestions forfurtherreading -‘-

JUNE 1992 IT/reAdvocate 121 THE RIGHT TO COUNSEL: AT RISK FOR KENTUCKY’S POOR

Edward C. Monahan

‘nail crinrinalprosecutions, the accusedshall fund public defender programs. Over the since she had not "specially called" the atten enjoy the right...to have the assistance of years, prosecutors who are charged with seek tion of the court to her lack of counsel. counsetfor his defence. in justice ironically have urged that the In Williams v. Commonwealth, 110 S.W. 339 Sixth Amendment, U.S. Constitution 1791. poor’s access to counsel be diluted. Ky. 1908 Kentucky’s highest court reversed In all criminal prosecutions the accused has These trends are hardly befitting the 200th An a robbery conviction of a person "stricken by the right to be heard by himselfand counsel.... niversary of our United States Bill of Rights poverty" who was tried without counsel but Section 11, Kentucky Constitution 1891. and the 100th Anniversary of our Kentucky the right to counsel required more than just We are rightly proud of our constitutional Bill ofRights,which we celebrated in the Fall, indigency. It required him to be "without edu commitment to the liberties guaranteed us as 1991. They raise the question of whether we cation, and has not mind enough to know when individuals. Most are embodied in our United are really committed to the 6th Amendment he was placed injeopardy...." Id. at 340. When States Bill of Rights, which was enacted in and Section 11. a "court can see that the person charged is a 1791, and our Kentucky Bill ofRights first en person of at least ordinary intelligence and can acted in 1791. These liberties are what most THE SLOW fully appreciate the position which he occu CONSTITUTIONAL distinguish us from all other pies...," then the poor person was not entitled countries in the EXPANSION world. to appointed counsel under Section 11. Id.

However, when we look at the balance sheet The 6th Amendment right to counsel is clearly Counseless poor persons who failed to ask for of how the United States Supreme Court, Ken stated andguaranteed to citizens by our Bill of counsel and who failed to make "the necessary Rights. However, it was until 1932, 141 went to tucky’s highest court, Congress, our state leg not showing in support thereof" prison islature, prosecutors and defense attorneys yearsafter our Bill of Rights became apart of without appellate relief from their uncoun have substantively and financially treated the ourConstitution, that our U.S. Supreme Court seled conviction. Hamlin v. Commonwealth, held an accused whose very life was in jeop most important constitutional guarantee, the 152 S.W.2d 297 Ky. 1941. right to counsel for an accused citizen, too ardy had aright to counsel even if he could not Being 21 years old, inexperienced in court much red ink appears. afford one. Powell v. Ala.bama, 287 U.S. 45 proceedings and legal matters was not enough 1932. For the vast majority of our country’s history, to require the court to appoint an attorney for For most of our statehood, Section 11 clearly suf the right to counsel under the 6th Amendment an indigent accused absent a request and and Section 11 has not been freely afforded to stated the people’s belief in the fundamental ficient showing by this young neophyte. However, courts did not the poor. Under the 6th Amendment, the right right to counsel. our Moore v. Commonwealth, 181 S.W.2d 413 command much respect for the people’s value to counsel has not been constitutionally guar Ky. 1944. anteed indigents accused of afelonyfor 86% of counsel, especially if you were a poor de It was not until 1948, 157 years after Section of the last 200 years! See 6th Amendment fendant accused of a crime. Counsel was not 11 breathed life, that Kentucky’s highest court viewed sacred preeminent right Timeline. as a or a for interpretedSection 11 to require that an attor many years. While the 6th Amendment guarantee of coun ney be appointed for a poor person charged sel was interpreted in a gradually expanding In 1886, the Kentucky Court of Appeals saw with a felony unless that person intelligently, manner by the United States Supreme Court no need to afford appellatc counsel to a person competently, understandingly and voluntarily had was v. from 1932 until the 1970s, it has of late been who been sentenced to life and who waived counsel. Gholson Commonwealth, unable to employ counsel. Turner v. Common Hamlin, supra and restricted more often than expanded by that 212 S.W.2d 537 1948. wealth, SW. Court. It is further being undermined quite ef I 475 Ky. 1886. Moore, supra were specifically oveffuled. See v. 5.W2d 212 fectively by a society which refuses to fund The Court in English v Commonwealth, 288 also Han Commonwealth. 296 counsel at a fair level for the poor accused of SW. 320 Ky. 1926 saw no right to counsel 1956. a crime. Constitutional law aside, society has for a woman who was "an unfortunate, friend It was not until 1963, 172 years after passage decided to structurally deprive the poor of the less old woman, addicted to the use of narcot of our Bill of Rights, that the Supreme Court full measure of counsel by choosing to under- ics, and very poor.. ignorant of all her rights" of the U.S. in Gideon v. Wainwright, 372 U.S.

JUNE 1992/The Advocate 122 ______

TIMELINE FOR THE EXPANSION OF THE 6TH AMENDMENT

1776 1787 1791 t932 1963 1967 1972 1991

I I r Bill or Rights of 6th Amendment I- m Constitution

335 1963 decided that due process required counsel for indigent prisoners seeking state capital federal habeas counsel needs. Ken that counsel must be given at trial by the state post-conviction relief. Pennsylvania v. Finley, tucky has been fortunate to obtain a federal to an indigent accused ofcommitting afelony 481 U.S. 551 1987. tesouree center but its focus is only in the fed Stale legislatures, including Ken in a state court. In that same year the 6th As a result of an early Rehnquist Scud attack, eralforum. lead Amendment right to an attorney was extended poor persons convicted ofa crime are not con tucky’s, have yet to follow this finding post-conviction as a result of equal protection to an appeal by stitutionally entitled to an attorney if they are for state trial, appeals and indigents convicted of a crime. Douglas v. unable to have one when they request the U.S. capital cases. California, 372 U.S. 353 1963. Supreme Court to grant certiorari - even in PROSECUTORS SEEK TO It took until 1967, 176 years after ratification capital cases. Ross v. Mofflit, 417 U.S. 600 LIMIT RIGHT TO COUNSEL of our Bill of Rights, for the guarantee under 1974. the 6th Amendment of freecounsel for an in In 1989, Chief Justice Rehuquist and his In each of these cases decided by the United digent to be applied to juvenile defendants at highly trained fighting majority tornahawked States Supreme Court, a prosecutor argued that. In re Gault, 387 U.S. 1 1967. the right to counsel by determining that a state that the United States Bill of Rights did not Not until 1972, 181 years after our Bill of which has sentenced a person to death wasnot require counsel for poor people charged with Rights became effective, was the 6th Amend constitutionally required to give that con committing acrime who were toopoor to hire ment right to have legal counsel at trial re demned indigent an attorney for his state post- an attorney. quired for citizens accused of cotumitting a conviction proceeding. Murray v. Giarran In contrast, defense attorneys, most often pub misdemeanor. Argersinger v. Hamlin, 407 tano, 492 U.S. 11989. lic defenders or appointed counsel, urged the U.S. 25 1972. Court in each of these cases to apply the Bill CONGRESS’ LIMITED ofRights to insure its full meaning by giving THE QUICK EXPANSION OF RIGHT TO counsel to those toopoorto hire theirown law COUNSEL CONSTITUTIONAL ASSAULT yer when their lifeor liberty were at stake. ON THE RIGHT TO COUNSEL It has become so bad that in theFederal Anti- The right to counsel had flourished in the 40 Drug Abuse Act, 21 USC Section COUNSEL MUST BE FULLY years following Powell, but after 1972 the 848q4B and q9 1990. Congress re FUNDED United Stales Supreme Court began its battle acted to the U.S. Supreme Court’s increas Without the proper resources available to the plan against the 6th Amendment. As a result ingly nairowing view of the right to counsel, attorney for an indigent accused, the 6th ofthe Court’s assaults, thereis no federal con and mandated that any indigent statesoner Amendment and Section 11 right to counsel is stitutional right to counsel on discretionary under sentence of death "shall be entitled to virtually meaningless. Resources and experts criminal appeals following an appeal ofright. the appointment of one or more" experienced are the fingers of the guiding hand of counsel. Ro55 y. Moffit:, 417 U.S. 600 1974; Wain attorneys andwhen reasonable necessary with A hand without fingers is not capable of guid Wright v. Torna, 455 U.S. 586 1982. Neither "investigative, expert or other services" for ance. thedueprocess clause of the14th Amendment federal habeas proceedings. The ultimate resource for the appointed attor nor the equal protection guarantee of "mean Congress has also recently begun to ftmd fed Forapubliede ingful ney is adequate compensation. access" requires the state to appoint eratres,ource centers to meet the significant

JUNE 1992/ The Mvbcale 123 ______

fender system it is adequate funding which CURRENT FUNDING DOES includes major felony cases, murder cases, permits reasonable caseloads. Without fair NOT REFLECT RIGHT TO and capital cases. COUNSEL VALUES funding, there is no realized right to counsel Nationally, Kentucky ranks at the bottom in its forthe poor. Funding for the 6th Amendment and Section money allocated to counsel for the poor. Ken Adequately funded counsel is required for 11 provided by states, counties, cities and the tucky is woefully underfunding its indigent competent performance by that counsel. Since federal government is not sufficient. To illus accused responsibilities, especially in contrast an attorney’s time is his/her livelihood and trate this reality, we look at public defender to the funding for the prosecutors, police and since the time devoted to a client depends on funding in Kentucky, and how much money corrections. the compensation received or the caseload that we spend on counsel relative to other ways we On top of the inadequate and imbalanced the funding permits, an appointed attorney spend our money. finding for Kentucky’s public defender sys who is not fully and fairly paid for his legal tem within the criminal justice system fund services or a public defender who has too large UNDERFUNDED COUNSEL ing, the underfunding and imbalance are exac FOR DEFENSE IN a caseload cannot rtalistically give a client ef INDIGENT erbated by the one-sided federal drug money KENTUCKY fective assistance with any regularity. See"At grants and federal confiscation and forfeiture torneys Must be Paid Fairly: Defense Attor The state of Kentucky’s 1990-91 budget is proceedings. neys are Entitled to Fair Market Value," ABA $8.922 billion. All of Kentucky’s criminaljus In fiscal year 1990, Kentucky police and Criminal Justice, Vol. 5, No. 2 Summer lice agencies received $466 million 5% of prosecutors received $4.61 4,190.64 from civil 1990. A public defender system lacking in the total state funding. seizures and forfeitures in drug cases. Ken necessary funds cannot provide constitutional Kentucky indigent criminal defense efforts re tucky public defenders received none of this counsel. ceived a paltry .1% of the total state budget money. Well-meaning pro bono efforts are not a solu and an embarrassing 2% of the funding for In fiscal year 1990; police and prosecutors re tion to inadequate funding of attorneys for in Kentucky criminal justice agencies. See state ceived $6,080,000 from drug grants under the digents and, in practice, are unethical because money for agencies graph. Federal Comprehensive Crime Control Act. they create and legitimize incompetent repre Is the right to counsel furthered by this kind of Kentucky public defenders received but sentation. See "Pro Bono Services in Criminal division of the available money? Not when $100,000 of this money. When this drug and Cases is Neither Mandatory Nor Ethical," this means that public defenders and ap seized money is added into the state funding, ABA Criminal Justice, Vol. 5, No- 3 Fall pointed attorneys in Kentucky are underpaid -‘ prosecution and police in Kentucky received 1990. and overworked. Full-time public defenders Access to competent defense experts, investi in Louisville start at SI 7,500. An appointed gators and other ancillary resources are neces attorney handling a Kentucky capital case re sary to insure the effective representation by a ceives a $2,500 fee. At best, this is minimum STATE hONEY public defender or appointed counsel. How wage. It is what we pay people who flip ham FOR AGENCIES ever, the tight to funds for experts has only burgers. Yet, Kentucky gives its Corrections been afforded in a limited way to this point by CORRECTIONS Cabinet an average of $12,901 to house each $220 the U.S. Supreme Court. Ake v. Oklahoma, state prisoner. 1 990-9 1 470 U.S. 68 1985. A/ce has been more nan $200 Kentucky has recently built a state prison at a in millions rowly read by lower courts than perhaps any cost of $89,900 per cell. The money spent for other constitutional right. See, e.g., Korden $180- one cell is literally more money than the fund brock v. Scroggy, 919 F.2d 1091 6th Cit PROSECUTION ing 70 of Kentucky’s 120 counties receive for $160 AND JUSTICE 1990 en bane. all indigent cases in their county for an entire $140 Most Kentucky fiscal courts, the funding yer source under KRS 31.200 for these resources $120 The Kentucky Corrections Cabinet received a in Kentucky, have lawlessly refused to meet 53% increase in its 1990-91 state funding. 00 their clear statutory duty. While the Kentucky JUDICIARY Their budget jumped $76 million from $147 Supreme Court has repeatedly recognized that million to $219 million. Apparently, we stand $80 fiscal courts have the duty to pay for these re ready to fund our security but not our liberty. sources,see, e.g., Shnnwns v. Commonwealth, $60 746 SiW.2d In 1986 the national average funding for mdi 393 1988, in the over 10 publish $10 ed cases the court has never once reversed a gcnt defense was $223 per case. At that time case when a fiscal court refused to pay or a Kentucky ranked 47th in the nation with fund $20 DPA ing at $118 per case. In 1990, Kentucky’s av trial judge refused to order a fiscal court to pay 0 for experts or other resources. erage funding for the more than 70,000 indi gent cases handled is but $162 per case. That

JUNE 1992/ The Advocate 124 $156 million eachyearcompared to thepublic CONCLUSION The Barhas specialreasons to be interestedin defenders receiving $11.5 million. Kentucky promoting fully fundedpublic defense. Jones prosecutors and police receive $14 for every Constitutionalprotections aredevoid of mean v. Commonwealth, 457 S.W.2d 627, 632 Ky. ing without counseL right the $1 provided public defense. Does that make The to counsel is 1970. preeminent protection of the United States and for a fair fight? Only by acting now can we keep the right to Kentucky Bill ofRighis because all otherguar As a result of these vast new resources, drug counsel from the shackles of debtor’s prison. antees depend on legal counsel to effectuate arrests in Kentucky have skyrocketed since them. Unfunded, underfunded, and imbal EDWARD C. MONAHAN 1987 - a full 114%. Not only have the drug anced funding risks the 6th Amendment and Assistant Public Advocate grants and the confiscations increased the Director of Training Section 11. Frankfort fundingimbalance, these newfunding sources Stan Chauvin, the immediate past- forthe policeand prosecutionhaveput greater ABA’s demands on the underfunded Kentuckypublic President, recognizes that the "role of the pub critical essential to defendersystem. lic defender is crucial, and insure the fair and effective administration of FUNDING PERSPECTIVE: justice. Without adequat& funding, the dis THE UNDERVALUING OF charge ofthis duty is impossible. We must face COUNSEL FOR TUE POOR this reality and act accordingly." Isn’t this 201st year of both our Bill of Rights the year The right to counsel, which is crucial to our to do it? two most fundamental values, our life and lib erty, is further affronted when we put indigent Why do we spend so little on counsel for the thminal funding in context. poor? It cannot be that society does not have the money. After all, we spend $3.3 billion on Nationally, in 1986 but $1 billion was spent on dog food annually. Could it be thai we are in the defense ofindigents in criminal cases. One tentionally refusing to fairly fund indigent de 8-2 Stealth bomber costs $1.1 billion. We fenseservices.., because we want the prosecu spend $36 billion a year on tobacco products, tion to have a decided advantage’because ...Whatis and billion each year to attend spectators $3.3 we want the criminal defendant to have a low government sports. paid, overworked, ineffective public de itself but the Kentucky fundedits indigent defense at $11.4 fender? ...because we want a baitrupt system greatest of all millioti in 1990. Thai amount would build but becausedefendingthepoorcriininal’ we do 4 miles of two laneroad in Kentucky. The Uni not understand how importantthe 6th Amend reflections on versity of Kentucky’s athletic budget of$1 5.9 ment and Section 11 aretous?Are we deciding hturtan million is $4 million more than ourfundingfor to learn the value of counsel by living out the ctents c/,z.nns counsel. The 9 baseball players with the high once popular refrain, "Don’t it always seem to Ma est 1991 salaries at each position totalled go that we don’t know what we got ‘til it’s $29,608,333 see the $29 million lineup - gone.... more Kentucky funding than 2-1/2 times the In 1932 when the United States Supreme for indigent defense. Court first put its down payment on the right Thechiefprosecutor in a Kentucky county is to counsel in Powell v. Alabojna, the Justices paid asalary of $67,378. Thechiefpublic de recognized that denial of counsel was a mur fender in the county starts at $35,220. derous act: Kentucky’s criminal justice system is funded Let us suppose the- extreme case of a prisoner at$466 millionth 1990.Atthesanietime,the charged with acapital offense, who is deaf and federal government spent $557 million just in dumb, illiterate, and feeble-minded, unable to employ counsel, with the whole power of the Kentucky on military contracts. state arrayed against him prosecuted by coun sel for the statewithout assignment of counsel Across the board, we do not think much of the for his defense, tried, convicted, and sentenced constitutional right to counsel nationally or in to death. Such a result, which, if carried into execution, would be little short of judicial Kentucky relative to other interests and val murder.... flea. Powell, siçra. 2Z7 U.S. at 7Z TheCourt of Appeals in Lavit v. Brady, S.W.2d Nov. 8,1991 has soundedthewarn ing siren on the unconstitutionality of Ken tuclcy’s inadequately funded public defender

JUNE1992! The Advocate 125 FREE COUNSEL: A RIGHT NOT CHARITY

James Neuhard

"In ouradversary system ofcrL’iiinaljus ever resources they, their family and century, the judge viewed himself as a rice, there is no right more essential tha1n friends might have to retain counsel of disinterested refereerather than an essen the right to the assistance ofcounsel." their choice. Whatever slight cost in tial arm of Crown power. Ironically in crease there might be, would be more matters of treason, counsel was fully al The proposal of this paper is quite simple: than offset in the simplification and lowed and provided - likewise in misde all those charged witha crime, regardless streamlining of the process of obtaining meanors. This supposedly neutral posi of economic status, are entitled to free counsel along with savings generated by tion of the judge furnished an excuse, counsel. The presence of counsel is fun appointed counsel filing bond reductip however, for continuing the practice of damental to the operation of our courts motions much earlier for jailed clients. denying counsel in felonies. The reason arid to the assertion of the rights of those commonly given was that the judge was charged withcrimes. The current eligibil impartial and looked with equal suspi ity critejia are a modem day "jabber ELIGIBILITY IN PRACTICE - cion on both sides in criminal actions, wocky" with the result that determnina COMPETING, OFTEN with the further explanation that a ciimi tion is either proforma or, whenpursued, CONFLICTING, VALUES DE nal proceeding was so simple that any too costly. Finally, if counsel is denied, TERMINE WHETHER FREE man ruld understand what was being the availability of the most important of COUNSEL IS GRANTED done. Another reason, though certainly rights is determined and denied without not stated openly at the time, was that the the defendant having a skilledadvocate defendant, having been indicted as an arguing for that right. For this and other enemy of the king, was at leasthalf guilty The detennination of eligibility for free reasons, eligibility determinations are not and that all aids should be furnished to worth the dine, cost and the threat to counsel has several powerful - most fre the King, whose security, at any rate dur constitutional rights they pose. quently extraneous - pressures which 17th century, was more important often effect the outcome of the determni ing the than that of the individual accused. Such Universal eligibility soves not nation: 1 judicial attitudes; 2 cost, 3 the attitudes exist today but more only th perception of right to free counsel as judicial problems of definition, of qelay, cost, the frequently, the prosecution bias ofjudges the constitutional a charity, and 4 the proformanature of their being conser questions raised by the proceeding. is attributed to jaded, determination procedures, and the coun vative or too sensitive to media andpub selless nature of the determination but lic pressure. also will simplify court procedures, as JUDICIAL AlTITUDES sure counsel availability at a much earlier COSTS time in the process, Judges believe they are neutral and that and allow whatever they can therefore adequately protect funds defendants may have to be applied most defendants’ rights, therefore defen The second pressure, costs, not only af after and if there is a conviction, to resti fects the determination of eligibility, but union, fmes or other public purposes. dants do not really need an appointed or, often determines which lawyer, what de for thatmatter, retained attorney. Experi livery system will supply the lawyer and right enced judges feel routine cases merit rou "The to counsel has ,ristorically tine treatment. after all, often what support services will be available to been an evolving concept.’ We have Counsel, is the lawyer. The marriage of cost con now reached that time when we must young and inexperienced and will "law sciousness and the judge’s self-image of recognize that the "right yer" the case to death. Therefore, judges in to counsel" may often make some effort to resolve fairness frequently results judges be means universal eligibility for counsel to the case without counsel. This attitude, rating appointed counsel for "needless" those charged with a crime. and urinecessaly work. Their fear of the still rampantly present in rural America cost of defense creates pressure to deny The impact of universaleligibility should in felonies and universally present in mis counsel, order unwarranted recoupment demeanors, is not new nor is it a product be modest. Universal eligibility would of current pressure." This costs, or appoint attorneys who need not expand the areas where "docket arenot that good. counsel is "judgey" attitude traces to the 16th and work but required. Further in those proceedings where counsel is now provided, in most 17th century. CHARITY metropolitan urban areas, the indigency rate is 90% in felony cases. Therefore, In England, following the Revolution and The third altitude, "charity," has the ef the merger of Equity and Law Courts in even if all those currently retainingcoun 1600’s, became in fect of our extending access to counsel sel were to avail themselves of free coun the criminal justice based on hardship the defendant or that creasingly neutral towards the accused f sel, the expense would be nominal. As a a sense of fairness and compassion is practical matter, however, those without and the state. Prosecutions were brought more appropriate in the counsel eligibil any funds make an effort to pool what- by private persons and by the rnid-18th ity question. The effect is that some

JUNE 1992 IThe Advocate 126 judges feel sympathy for the defendant the court. This lead ultimately to the The perception of the "right to counsel" and err on the side of granting counsel granting of an array of technical privi as a fundamental and essential due proc than denying counsel to a financially leges to the benefit of the poor in eccle ess right continued to grow follo’ing strapped defendant. siastical courts. However, charitable Powell. However, inBetts v.Brady,’ the nghts, essential to equity jurisdiction, Supreme Court was not ready to deter PRO FORMA were not originallyabsorbed formally in mine that the assistance of counsel was the secular system when, in the 16th cen such a fundamentalright that the Consti The marriage of charity with "laziness" tury, the co-equal authority of Church tution mandated the right to freecounsel sometimes allied with cynicism leads to and Ste became secularized into one in the states through the due process the fourth pressure, pro forma proceed court. Consequently, the theme of pov clause of the 14th amendment. ings. Well meaning, lazy, and/or time erty didnotplay a role inthe common law conscious judges alike cannot define or constitutional development of the rigiJ In 1963, the Supreme Court clearly laid "unable to afford counsel" or "inch to free counsel until Johnson v. Zerbst. the foundation foruniversal eligibilityof gency," they do nothave time to malistir Ironically, but predictably, the right to free counsel in all adversaryproceedings cally investigate the data, and they fear free counsel emerged in this country dur where a person is charged with a crime: reversal is more likely for denying coun ing the height of the great depression and sel. All and any doubts are resolved in the new deal. The great counsel cases lawyers in criminal cases are neces favor of appointing counsel. decided during the depression-affected sities not luxuries. The right of one 1930’s and the civil rights and w-on charged with crime to counsel may not COUNSEL DENIAL poverty affected 1960’s were strongly be deemed fundamental and essential written in due process terms but were to fair trials in some countries, butit is Studies in England starkly reveal the made possible by the great human and in ours."19 above patterns of counsel denial and are civil rights causes of the day. equally apparent in this country: If a In Gideon v. Wainwright?° the court judge views the matter as trivial and his "The life of the law has not been logic: squarely rejected Betts v. Brady and held own righteousness as high - counsel is it has beenexperience. The felt neces that it was an aberration from the clear denied disproportionally to the incidents sities of the time, the prevalent moral line of cases recognizing the right to ofpoverty. This pattern is presentin mis and political theories, institutions of counsel as a fundamental necessity-not a demeanor assgnments throughout the public policy, avowed or unconscious, luxury, and hence, equal protection man United States and England. Further even the prejudices judges share with dated that the poor receive free counsel. more, it was notuntil the 1980’s in Eng their fellow-men, have a good deal Following Gideon, the constitutional land that studies showed compliance with more to do with that than syllogisms in right to free counsel w# recognized in an the right to free counsel was being determining the rul95by which men array of proceedings. Most of the sub granted by judges. As long as the judges should be governed." sequent free couns cases extended the were free to deny counsel unless "the constitutional right to counsel through case warranted" counsel, counsel was In Powell v. Alabama,’6 Justice Suther out charging, conviction, sentence and frequently denied. Within courts of the land’s oft quoted language forcefully and post-conviction proceedings. same jurisdictions, counsel assignment eloquently stated the due process impact rates variedby as much as 60%. Since the of the assistance of counsel: As the right to counsel was rapidly ex most recent reforms in England, 97% of tended, the quantity of change and the those charged ‘with "felonies" have as ‘The assistance of counsel is often a strength with which the need for counsel signed counsel andin the "misdemeanor" requisite to the very existence of a fair was expressed inexorably revealed that court representation by private counsel is trial. the time for universal eligibility had ar rare?’1 As a consequence of the serious rived. Justice Powell recognized in Arg attention the abuse of non access to coun The right to beheard wouldbe, in many ersinger the anomaly the impact the right sel has had in England - principally be cases, of little avail if it didnotcompre to free counsel cases would have on cause of reluctant judges - the cost for hend the right to be heard by counsel. working and middle class Americans. counsel has risen from 45 millionpounds Even the intelligent and educated lay in 1977/78 to over 100 million pounds in man has small and sometimes no skill "Indeed,one of the effects of this ruling 1982. However, the final step to universal in the science of law. If charged with will be to favor defendants classified as eligibility, though not yet taken in Eng crime, he is incapable, generally, of indigents over those not so classified, land, will be relatively low in cost - given determining for himself whether the yet who are low-income groups... The that those defendants still, using private indictment is good or bad. He is unfa line between indigency and assumed couns?! would undoubtedly continue to miliar with the rules of evidence. Left capacity to pay for counsel is necessar do so. without the aid of counsel he may be ily somewhat arbitrary, drawn differ putonthalwithoutapropercharge,and ently from Stare to State and often re EVOLUTION OF THE RIGHT convicted upon incompetent evidence, sulting in serious inequities to accused TO FREE COUNSEL or evidence irrelevant to the issue or persons. The Court’s new rule will ac otherwise inadmissible. He lacks both cent the disadvantage of beinA barely To date, two dominant themes have the skill and knowledge adequately to self-sufficient economically." driven the issue of access to free counsel prepare his defense, even though he for those charged with crime who cannot have a perfect one. He requires the In recognizing the evolution of the right afford their own lawyer1 One is charity, guiding hand of counsel at every step to free counsel, he expressed concern the other is due process. 2 in the proceedings against him. With over the enlargement of the right. out it, though he be not guilty, he faces The Anglo-American history of the the danger of conviction because he "No one can foresee the consequences "right to coi.msel" dates to the ecclesias does not know how to establish his of such a drastic enlargement of the tical courts of early England and was innocence, If that be true of men of constitutional right to free counsel. But truly a charity. Pope Honorius 1111216- intelligence, how much more true is it even today’s decision could have a se 1227 decreed that those unable to obtain of the ignorant an illiterate, or those of riously adverse impact ipon the thy-to counsel were to be given free counsel by feeble intellect."1’’ day fbnctióning’bf thWëririiflialjustitt

JUNE 1992 /TheAdvocate 127 system. We should be slow to fashion making a determination of eligibility us few indeed, who fail to hire the best a new constitutional rule with conse ingzrnworkable criteria where the defen lawyers they can ge to prep&e and quences of such unknown dimensions, dant is asserting a request for the most present their defenses. That govern

especially since it is suppcted neither fundamental right of all - and lacks coun ment hires lawyers to prosecute and by history nor precedent." sel doing so. defendants who have the money hire lawyers to defend are the strongest in His contzm was either that the system As the United States Supreme Cost said dications of the widespread belief that would slow down because everyone in Brown v. Board ofEducation: lawyers in criminal courts arenecessi would assert and use their right to a law ties, not luxuries. The right of one yeror that the cost would bankrupt local "In approaching this problem, we can charged with crime to counsel may not governments. As often is the case when not turn the clock back to 1868 when be deemed fundamental and essential fundamentalhuman rights have beenrec the 1114th] Amendment was adopted, or to fair trials in somecountries, but it is ognizedand enforced - the concerns were even to 1896 when Plessy v. Ferguson in ours. From the very beginning, our not realized. But even in recognizing that was written. We must consider public state and national constitutions and the Republic didnotfall becausethe poor education in the light of its full devel laws have laid great emphasis on pro now had lawyers, Justice Rehnquist still opment and its present place in Ameri cedural and substantive safeguards de expressed reservations about expending can life throughout the Nation. Only in signed to assured fair trials before im the right to free counsel: this way can it be determined if segre partial tribunals in which every defen gation in public schools deprives these dant stands equal before the law. This "Argersinger has proved reasonably plaintiffs of the equal protection of the noble ideal cannot be realized if the workable whereasany extension would laws. poor man charged with crime has to create confusion and impose unpre face his accusers without a lawyer to dictable, notnecessarily in-substaiijal, Today, education is perhaps the most assist him.’ 372 U.s. at 344,9 L.EcL2d costs on 50 quite different States.’ important function of state and local at 805, 9 ALR2d 733." Footnotes governments. Compulsory school at omitted. tendance laws and the great expendi THE NEED FOR UNIVERSAL tures for education both demonstrate In the daily livesof ourcitizens, assertion ELIGIBIL]TY NOW our recognition of the importance of of basic rights - indeed rights once paid education to our democratic society. It for - roads, parks, schools, voting, and is required in the performance of our education - now are deemed so essential Even though the costs for defense coun most basic public responsibilities, even and fundamental that access to them is sel make up usually less than 1-3% of a service in the anned forces. It is the free and unqualified by wealth or pov jurisdiction’s criminal justice budget, very foundation of good citizenship. erty. Indeed, rich or poor enjoy equal such "costs" have brought great pressure Today it is a principal instrument in accessto public schools andpublic facili to be "contained." Seldom looked at as a awakening the child to cultural profes ties. percentage of total costs but usually sional training, and in helping him to looked at in , they are easy tar adjust normally to his enviromnent. In Ifwe want to reorient the current woeful these days, it is doubtful that any child imbalanceof fuØing within the criminal gets. Seen as funds for criminals - worse may reasonably be expected to succeed justice system, then we must remove as funds for indigent criminals - they lack a constituency and, hence, are usually in lifeif he is denied the opportunity to defense counsel costs from the province low priority or neglected areas. Further an education. Such an opportunity, of the poor only. If indeed the presence by viewing charity as the driving force where the state has undertaken to pro of defense counsel is essential to the ef behind the right to counsel, the right has vide it, is a right which must b7made ficiency of our system and fundamental suffered the general backlash all "poor" available to all on equal temis." due process, then competent counsel people’s programs currently suffer. The should be universally available to all re effect has been to tighten the finding of So it is with the role defense counsel gardless of their economic class. Such a eligibility, overassign public defenders, plays in our criminaljustice system. Is the reorientation of the role ofassignedcoun force defendants to repay counsel costs, above language regarding education dif sel will make the importance of counsel and create high volume and woefully in ferent from the United States Supreme less easy to dismiss as acharity that will adequate contract systems. Overall, this Court’s observation regarding the impor be provided in good times but so easily tance criminal cases? deferred in harq times when only essen pressure has lead to generally disparag of counsel in 0 ing of the use and abuse of the right to tials come first. counsel generally andparticularly under "In Gideon v. Wainwright, stipra mined support for free counsel for the overruling Bells v. Brady, 316 U.S. JAMES R. NEUHARI poor. If we hope to ensure the validity 455,86 L.Ed. 1595, 62 S.Ct. 1252, we State Appellate Defender andfundamental importance of the right dealt with a felony trial. But we did not State of Michigan so limit the need of the accused for a ThirdFloor, North Tower to counsel - then we mustremove any hint lawyer. We adversary Avenue that free counsel is tied to charity or is sai& ‘[I]n our 1200 Sixth only the province of the functionally system of criminal justice, any person Detroit, Michigan 48226 poor. haled into court, who is too poor to hire 313 256-2214 a lawyer, cannot be assured a fair trial unless counsel is provided for him. This Jim Neuhard has been long t&ne Director The evolution of the right to counsel, to Defender the right to free counsel, to the right to seems to us to be an obvious truth. of the Michigan State Appellate free paid counsel and fmally to the right Governments, both state and federal, Office. He was President of the National to reasonably competent free paid coun quite properly spend vast sums of Legal Aid and Defender Association front money to establish machinery to try 1987-1989. He is Chair of the ABA Bar sel - has broughtus now to the tithe, just as a similar evolution did in segregated defendants accused of crime. Lawyers Information Program, and he has pre to prosecute are everywhere deemed sented at NLADA’s National Defender education, to recognize free counsel in is Chair of criminal cases as a fundamental neces essential to protectthe public’s interest Management Conferences. He sity. Access to free counsel should not be in an orderly society. Similarly, there ABA’s Special Committee on Underfund dependent on a judge or a bureaucrat are few defendants charged with crime, ing ofJustice System. Jim is also Chair of

JUNE 1992 IT/re Advocate 128 the Bar Information Program BIP which Note, "What Price Probation? Reim area will be from the errforcement ofArg provides technical assistance to local bar bursernent of Costs of Appointed Coun ersinger, supra, n.3, and not from the associations, courts and legislatures on sel as a Condition ofProbation," 33 Bay universal eligibility proposed in this pa how to deal with crisis in defense wider lor L. Rev. 393 1978; Report to the per. See generally, Lefstein, "Criminal funding. North Carolina General Assemblyon the Defense Services for the Poor...," supra. mnthgency Screening Project May 23, FOOTNOTES 1984 unpublished report; Some spe 8Theodore F. Plucknett, A Concise His cific examples of the impact of recoup toty of the Common law, 3rd Ed. Lon 1Lakeside v. Oregon, 435 U.S. 333, 341, ment on total public defender expendi don: Butterworth, 1940, pp. 385 if. 55 L,Ed.2d 319, 98 S.Ct. 1091 1978. tures are: In Ohio, 1980 total state costs "[Tihe interest protected by the right [to of providing defense services was See generally, Lefstein, supra. ajury thall...is notas fundamental to the $12,458,810.00 while recoupment pro guarantee of a ir trial as is the right to duced only $1,423.00 approximately 10See 0. Hughes, "English CriminalJus counsel." Argersinger v. Hamlin, 407 .01%of the total budget; In Connecticut, tice: is it Better Than Ours?" 26 Ariz. U.S. 25, at 46,92 S.Ct. 2006,32 L.Ed.2d the total budget was over $4 million in L. Rev. 507, 546-51 1984. 530 1972 Powell J., concurring in re 1981 while recovery was slightly over $3,600 approximately .09% of the ‘1Some Scandanavian countries provide budget; New Jersey’s total budget was every defendant counsel at state expense 2C. F. Evans, "The Definition of mdi over $16 million while recovery was regardless of his poverty or wealth, sub genty: A Modern-Day Legal Jabber $242,739 approximately 1.5% of the to ject to his right to retain counsel pri wocky?"4 St. Marys L.J. 34,351972. tal budget in 1981. Because of the small vately. Report of the Conference on Le percentages of income recovered, com gal Manpower Needs of Criminal Law, 3For articles detailing the virtual impos bined with the constitutional and ethical 41 FR] 389, 396 1967, cited in T. sibility of establishing uniform and sim issues delineated below, we have serious Matthis, "Financial inability to Obtain ple indigency guidelines see: Carter and doubts about the efficacy of recoupment an Adequate Defense," 49 Neb. L. Rev. Hauser, ‘The Criminal Justice Act of as a revenue raising measure. To compli 371969. 1964, when is a defendant ‘fmancially cate matters further, the cost of collection unable to obtain counsel,’ investigative, of money recouped frequently exceeds 12For misdemeanors - only if the defen expert or other services necessary to an the amount recovered. For example, sev darn faces jail. Scott v. illinois, 440 U.S. adequate defense?" 36 FederalRulesDe eral states have now begun experiment 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 cisions 67 1964; W. Fortune, "Finan ing with so-called "eligibility screening 1979. cial Screening in Criminal Cases - Im units" created to verify client eligibility practical and irrelevant," 1973 Wash, and recoverthe assessedcosts of counsel. ‘3"The Definition of indigency: A Mod U.L.Q. 821; Note,"Determinationofthe In Colorado, the forerunner of such ern-Day Legal Jabberwocky?,", supra, Right to Counsel," 5 Wilmnette L. J. 663 screening units, a four year history of note 2. 1969; Note, "Judicial Problems in Ad collections from indigent defendants or ministering CourtAppointinent ofCoun dered to pay the portion of their attor 143 U.S. 458, 58 S.Ct 1019, 82 LEd. sel for indigents," XXVIII Wash. and ney’s fees accounts for only 35% of the 1461 1938. "The Definition of mdi Lee L. R. 170 1971; Note, "mndigency: eligibility screening unit’s total budget. gency: A Modern-Day Jabberwocky?" What Test," 33 Ark. L. R. 533 1979. This data raises serious questions about supra, note 2, at 35. whether recoupment is a viable means to 4For discussions on the gross lack of cost reduce the costs of indigent defense serv 150 Holmes, Jr., The Common Law I efficiency of recoupment proceedings ices, or may actually make them more 1951. recovering counsel costs partialiy or expensive. R. Wilson, Report to theNa wholly from defendants and of constitu tional Association of Counties June, 16227 U.S. 45,53 S.Ct. 55,77 L.Ed. 158 tional implications of such proceedings 1984 unpublishedreport. 1938. see; William P. Curtis, Recoupment for Public Defender Services: A Viable 5Another critical problem in current mdi ‘7Powell v. Alabama, supra, at 68-69, Revenue Generating Mechanism? Sep gency determinations is the clash be 77 L.Ed. at 170. ternber 30, 1981 unpublished manu tween a defendant’s assertion of the 6th script; William IL Fortune, "Financial amendmentright to counsel and their 5th ‘3l6 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. Screening in Criminal Cases Impracti amendment right to remain silent. Carol 15951942. cal and In-elevant" 1973 Wash. UL.Q. Slatin chronicles cases where informa 821; Goschka, ‘Recoupment Statutes: tion garnered during indigency determi 19Gideon v. Wainwright, supra, 372 U.S. FreeDefensefora Price" 53 LUrb.L. 89 nation proceedings was used against de 335. 1975; see also Case notes, 52 J.Urb.L. fendants in criminal prosecutions. See 363 1974; Norman Lefstein, Criminal Note, C. Slatin,"DetertniningEligibility 20372 U.S. 335, 344-45 1963. Defense Servicesfor thePoor: Methods for Public Defense: Constitutional Con andProgramsforan4ProgramsforPro- flicts Posed fry CaljfornialndigencyPro 2tSee R. Brandt, The Right to Counsel: viding Legal Representation and the ceedings, 12 Univ. of S.F.L. Rev., 717 An Overview, Published Paper pursuant Need for Adequate Financing May 1978. to an LEAA Grant No. J-LEAA-008-79 1982; National Center for State Courts, Abt. Associates, Cambridge, Mass. Providing Legal Services to indigents in 6Avgersinger v. Hamlin, 407 U.S. 25, 44 1980. Brandt details the right to counsel Colorado December 1982; National Chief Justice Burger, concurring. before, during and after trial; in sentenc Legal Aid and Defender Association, ing, appeal, collateral attack, probation Guidelinesfor Legal Defense Systems in 7Imi the misdemeanor area, indigency is and parole revocation proceedings, juve the United States 1977; North Dakota running as high as 60% in urban courts. nile delinquency proceedings, mental Counsel for Indigents Commission, However, this may be a "soft" figure as commitment cases, deportation proceed North Dakota Supreme Court, North Da misdemeanorcourts are notoriously bad ings, extradition, prison disciplinary pro kota Judicial System: Indigent Defense at informing defendants of their right to ceedings, military courts and other non- Procetha-es and Guidelines May 1983; counsel. Any trurcosrincreases in this

JUNE 1992 IT/re Advocate 129 criminal actions such as paternity and Powell, concurring at 407 US., p.52. 30It has been my experience in 15 years child custody cases. of budget hearings in Michigan state 2Scott v. lllinois, 440 U.S. 367, 373, 99 with a boom or bust economy that thë?ë It should be noted that many states S.Ct. 1158, 59L.Bd.2d 383 1979 Rehn has never been a"good time" for defense either by statute, common law or state quist. funding. Perhaps onlynuclear waste sites constitutions already had a broad right to are lower in popularity than criminal de free counsel. Comment, "Right to Coun 26374 U.S. 483, 74 S.Ct. 686, 98 LEd. fense services. sel: The Impact of Gideon v. Wainwright 873 1953. in the Fifty States," 3 Creighton L. Rev. 103 1970. 27347 U.S. 492-493. 407 U.S. 25, at 50,92 S.Ct. 2006, 32 407 U.S. 25,32. L.Ed.2d 530 Powell, J., concurring in result. 29See generally, Lefstein, supra.

CHRONOLOGY OF BICENTENNIAL DATES RELATED TO THE RATIFICATION OF THE BILL OF RIGHTS

JANUARY 16, 1786: Virginia’s legis AUGUST 6, 1787: The five-man com OCTOBER 27, 1787: The first "Fed lature adopts a statute forreligious free mittee appointed to draft a constitution eralist" paper appears in New York dom, originally drafted by Thomas Jef based on 23 "fundamental resolutions" City newspapers, one of 85 to argue in ferson and introduced by James Madi drawn up by the convention between favor of the adoption of the new frame son. The measure protects Virginia’s July 19 and July 26 submits its docu of government. Written by Alexander citizens against compulsion to attend or ment which contains 23 articles. Hamilton, James Madison and John support any church, and against dis Jay, the essays attempt to counter the crintination based upon religious be AUGUST 6-SEPTEMBER 10, 1787: arguments of anti-Federalists, who fear lief. The law serves as a model for the The Convention debates the draft coh a strong centralized national govern First Amendment to the United States stitution. ment. Constitution. SEPTEMBER 8, 1787: A five-man DECEMBER 7, 1787: Delaware rati MAY 25, 1787, OPENING OF THE committee comprised of William fies theConstitution the first state to do CONSTITUTIONAL CONVEN Samuel Johnson chair, Alexander so by unanimous vote. TION: On May 25, a quorum of dele Hamilton, James Madison, Rufus King gates from seven states arrives in Phila andGouvemeurMorris, is appointed to JULY 2, 1788: The President of Con delphia in response to the call from the prepare the fmal draft. gress, Cyrus Griffin of Virginia, an Annapolis Convention, and the meet nounces that the Constitution has been ing convenes. Ultimately, repre SEPTEMBER 12, 1787: The Com ratified by the requisite nine states. A sentatives from all the states but Rhode mittee submits the draft, written pri committee is appointed to prepare for Island attend. Of the 55 participants, marily by Gouvemeur Morris to the the change in government. over half are lawyers and 29 have at Convention. tendedcollege. The distinguished pub NOVEMBER 20, 1789: New Jersey lic figures include George Washington, SEPTEMBER 13-15, 1787: The Con ratifies ten of the twelve amendments James Madison, Benjamin Franklin, vention examines the draft clause by submitted by Congress in response to George Mason, Gouverneur Moths, clause, and makes a few changes. the five states ratifying conventions James Wilson, RogerSherman and El- that had emphasized theneed for imme bridge Gerry. SEPTEMBER 17, 1787: All twelve diate changes, The Bill of Rights, the state delegations vote approval of the first state to do so. MAY 29, 1787: Rather than amend the document. Thirty-nine of the forty-two Articles of Confederation, the VIR delegates present sign the engrossed DECEMBER 15, 1791: Virginia rati GINIA PLAN is proposed which de copy, and a letter of transmittal to the fies the Bill ofRights, making it part of scribes a bicameral legislature, a judi Congress is drafted. The Convention the United States Constitution.* ciary branch and a counsel comprised formally adjourns. of the executive and members of the * Three of the original thirteen states judiciairy branch with a veto over leg SEPTEMBER 20, 1787: Congress re did not ratify the Bill of Rights until the islative enactments. ceives the proposed Constitution, and 150 anniversary of its submission to the on September 28. resolves to submit states. Massachusetts ratified on March the Constitution to special state ratify 2, 1939; Georgia on March 18, 1939; ing conventions. and Connecticut on April 19, 1939.

JUNE1992 IT/re Advocate 130 HAPTER 11

Constitution oftile ‘UnitedStates SFourtIi Amen4Tnzent

‘Unreasonable searches and seizures: The riqlit of the people to be secure in their persons, houses, papers, ant effects, against unreacoruzflf.e searches antI seizures, shall not be viafated, aiuf no wan-ants shall issue, but upon probable cause, supported by oath or affirmation, andparticularly describing the place to be searched, inul the persOns or things to be seized.

Constitution of flCentucky Section 10

Security from search anti seizure; conditions of issuance of warrant: The people shall be secure in their persons, houses, papers andpossessions,from unreasonable search antI seizure; a-nil no warrent shall issue to search any place, or sieze any person or thing, without describing them as nearly as may be, nor withoutprobable cause supportedby oath oraffinnat ion.

JUNE 1992 IT/re Advocate 131 * * -r r.

STACEY BOLT, UNIVERSITY OFOREGON

JUNE1992 ITheAdvocate 132 BEYOND THE BATTERED CONSTITUTION

zLa

The bicentennial of the Constitution in shall issue but upon a "fair probability Queryor no query, overstating or lament 1987 commemorated the enduring terms that contraband or evidence of a crime ing that the Constitution of the United of the most favorable deals the framers will be found" on a particular person or States is battered, beaten, and but could agree among themselves to sirike. in a particular place. That something is shredded is counterproductive It is Conceivably, 1987’s constitutional com a fair probability does not necessarily enough to show that that is the state of the motion was misconceived. At least as mean that it i probable. A probability is federal Constitution, at least in some in important as the framers’ deals was the a likelihood. Whether a probability is stances, from the perspectives of the factthat they societally sealed. Only ‘We fair is in the eyes of the beholder. In the criminal defendant, his or her counsel, the People" could ratify the framers’ context of a warrant, the beholder is a and those who care to keep the Bill of separate agreements as the one Corzstitu magistrate who is to look at the amor Rights off the Endangered Species List. Lion of the United States of America, phous "totality of the circumstances" This now becomes a take heed type of which, of course, "We the People" did in and who is to be paid "great deference."6 tale bottomed on the notion that there is 1788. It is a wonder that the ratification In other words, what the magisqate says, no sanctuary but in purposeful action. In of the Constitution is not "bicentennial for practical purposes, goes, despite particular, this tale intends to incite a ize&" After all, the Constitution itself constitutional language to the contrary. nationwide state constitutional riot. comes closer to commanding that "We the People" commemorate its ratzjlca In the rare instance where a court finds a The riot should originate from the site tion rather than its framing, in its pream search warrant not supported by the Su where the rallying cry is most insightful, preme Court’s notion of probable cause, in Oregon. In accord with the spirit and and,in* power of state constitutional law, the Maybe we have become so accustomed motto ofthe State ofOregon isA/us Volat to each Supreme Court saying that the the absence of an allegation that the magis Propriis ç’She flies with her own Constitution and prior Supreme Court trate abandoned his detached and neutral wings".’ She is guided by Oregon Su opinions do not really mean what they role, Ithe] suppression 1°f evidence obtained preme Court Associate Justice Hans say that ‘Wethe People" do notbother to by police officers in reliance on the warrant] wrote the now well settledOre is appropriate only if the officers were dis Lthde worry about constitutional consistency. honest or reckless in preparing theiraffidavit gon rule that But worry we should. Nowhere is this or could not have harbored an objectively judicial repositioning more oblivious to reasonable belief in the existence of prob [t]he proper sequence is to analyze the the language of the Constitution and able cause. state’s law, including its constitutional law, more obstructive to the blessings of lib before reaching a federal constitutional claim. This is required, not for the sake of erty than in the realm ofperhaps the most Given the Supreme Court’s definition of parochialism or of style, but because the important amendment to the Constitu probable cause and, unless any dishon state does not deny any right claimed under tion, the fourth, which provides: esty orrecidessness on the part of a police the federal Constitution when the claim be officer in preparing the affidavit was bla fore the court in fact is fully Set by state The right of the people to be secure in their tant., tl1e evidentiary outcome is predeter law’4 persons, houses, papers, and effects, against mined and contrary to the fourth amend unreasonable searches and senires, shall ment’s limitation upon governmental en Every state is free to adhere to such a not be violated, and no Warrants shall issue, rule. Various have done so in but upon probable cause, suppoited by Oath croachment of individual privacy. ?tC5 or affirmation, and particularly describing varying degrees. Until every state fully the place to be searched, and the persons or Under the deterrence rationale of this does so, the state constitutional revolu things to be seized. good faith exception to the exclusionary tion must continue. rule, the Supreme Court knows no limits. If we start with the proposition that war Evidence is not inadmissible because it Oregon’s rallying cry for inç4sive inde rantless searches and seizures are per se was seized pursuant to a statute sub pendent analysis has mostly reverber luireasonable unless falling within one of sequently declared unconstitutional, un ated in the confines of cases arising under the "specifically established and well-dc less a reasonable police officer should article 1, 9, of the OregOn Constitution, lineateij ex,peptions to the warrant re know that hhe statute is "clearly unconsti which is practically identical to the fourth quirement" and, if we assume, in an tutional."1 Query: could anything be amendmentof the federal Constitution in abstract instance, we are left witha situ more constitutionally confounding and providing that: ation in which the fourth amendment re jurisprudentially pernicious than pennit quires a warrant. According to the Con ting the conviction of a defendant on the no Jaw shall violate the right of the people to stitution, "no Warrants shall issue but basis of evidence seized pursuant to an be secure in their persons, houses, papers, upon unconstitutional law? and effects, against unreasonable search and probable cause?’ According to the seizure and no warrant&shallissue but upon Supreme Conrt., however, no warrants probable cause, supported by oath, or af

JUNE1992 ITheAdvocate 133 firmation, and particularly describing the authorized whenever possible and that war The Court’s holding provides politically pres place to be searched, and the person or thing rantless searches are extraordinary depar sured legislatures with a grace period during tobe seized. tures from the rule deserves to be more than which the police-may freely perform-unreason-- able searches and creates a positive incentive to a comforting fable because the primary promulgate unconstitutional laws which may af The textual differences between article I, source of the governing premises remains te thousands or millions of citizens given that 9 and fourth the state constitutional guarantee of a judi it is not apparent how much constitutional law a the amendment are neither reasonable police officer is expected to know. significant for practical purposes nor cial warrant ... not what judges write about nec it. The guarantee will remain for future See Id. at 1175-77 O’Connor, J., dissenting. essary for different results. Oregon’s text, judges to apply, as long as the people do not like that of most states, was not modeled 11Nevertheless, commentators obsessively con chooseto amend the constitution to sacrifice template criminal defendants’ constitutional cri from the federal Bill ofRights, but rather that guarantee. sis. See, e.g., THE BURGER COURT: THE from other states’ bills of rights8 Be COUNTERREVOLUTION THAT WASN’T sides the historical primacy of states’ bills In sum, beyond the battered, beaten, and V. Blasi ed. 1983. of rights and the hierarchical logic all but shredded federal Constitution, the REV. 86.040 1987. constitutional law in a federal system,? promises of those who framed our state ‘20R. STAT there are three main reasons for inde constitutions, until amended, remain in t3justice Hans Linde is quite possibly the pri pendent state constitutional analysis. tact. mary instigator of the burgeoning state constitu One is that the decisions of the United tional revolution. For his visionary analyses of a "New Federalism 7 see Linde, Without "Due States Supreme Court, especially in the NICKOLAS FACAROS Process"-Unconstztutional Law in Qregon, 49 area of search and seizure, are often University of Oregon OR. L. REV. 1251970 Linde, Book Review, fraught with awkward logic and are as 52 OR L. REV. 325 19/3 reviewing B. SCI-l. School of Law WAR’12 THE BILL OF RIGHTS: A DOCU unstable as the Supreme Court’s men MENTAkY HISTORY 2 vols. 1971; Linde, bership. Another is that each state’s judi Reprinted from the CHAMPION, Nov. First Things First: Rediscovering the States’ ciary is independently responsible Bills ofRights, 9 U. BALTL. REV. 379 1980;. to 1988, by permission 1988 NACDL Aux Linde, E Phiribus: Constitutional Theory and safeguard the right2s of citizens under the iliary Essay Competition. State Courts, 18 GAL. REV. 165 1984. state constitution. The other is that, from a defendant’s perspective, there is FOOTNOTES For the analyses of other thoughtful commenta tors on the trend toward a "New Federalism," see nothing to lose and everything to gain. Symposium: The &ner&ence of State Constitu ‘U.S. CONST. preamble provides: "We the Peo tional Law, 63 TEX.L. REV. 959 1985; Abra For the first four reasons, the Oregon ple of the United States, in Order to form a more hamson, Reincarnation of State Courts, 36 perfect Union, establish Justice, msure domestic SW.L.J. 951 1982; Brennan, The Bill ofRights Supreme Court has freuently departed Tranquility, provide for the common defense, and the Stales: The Revival of State Constitu from federal precedent. In particular, in promote the general Welfare, and secure the tions as Guardians of Individual Rights, 61 Oregon, contrary to the federal positio; Blessings of Liberty to ourselves and our Poster N.Y.U. L. REV. 535 1986; Collins, Reliance probable means ity, do ordain and establish this Constitution for on State Constitutions: Some Random Thoughts, cause probable cause," the United States of America." 54 MISS. L.F. 371 1984; O’Connor, Trends in rather thAn fairprobability or substantial the Relationship Between the Federal and State chance. Evidence obtained by police 2Katz v. United States, 389 U.S. 347,357 1967. Courts From the Perspective of a State Court officers in reliance on a search warrant Judge, 22 WM. & MARY L. REV. 801 1981; 3illinois v. Gates, 462 U.S. 213, 238 1983. At Polfack State Constitutions as Sepirate Sources subsequently found unsupported by one point, the Court assertedthat "probable cause of Fundamental Rights. 35 RUTGERS L. REV. probable cause is routinely excluded in requires only a probability or substantial chance 707 1983; Welsh, Reconsidering the Constitu of criminal activity." Id. at 243 n,13. tional Relationship Between State and Federal Oregon?4 Rather than base the exclu Courts, 59 NOTRE DAME L. REV. 1118 sionary rule on a speculative theory of l984 Welsh, Whose Federalism? The Burger 4Webster’s New World Dictionary of the Ameri Liberties deterrence, Oregon courts deny "the gov can Language 1132 2d college ed. 1970. Court s Treatment ofState Civil Judg ernment the fruits of its transgressions ments, 10 HASTINGS CONST. L.Q. 819 0983; Williams, In the Supreme Court’s against the person whose rights it has 5Gates, supra note 3 at 241 Shadow: Leflutirnacy of State Rejection of Su invaded ... to preserve that person’srights preme Court s Reasoning and Result, 35 S.C.L to same extent as if governmenç 61d. at 236. REV. 4031984; Williams, State Constitutional the Law Processes, 24 WM. & MARY L. REV. 168 officers had stayed within the law," 7Franics v. Delaware, 438 U.S. 154 1978, de 1983; Note, Developments in the Law-The More precisely, the Oregon Supreme scribes the hoops a defendant must jump through Interpretation of State Constitutional Rights. 95 Court has looked "to the character of the in order to challenge a warrant affidavit sufficient HARV. L. REV. 1331 1982. on its face: rule violated in the course of securing the For a selection of 1970’s analyses on this trend, evidencewhen deciding whether the rule [Wjhere the defendant makes a substantial pre see Willner, Constitutional lnter&retation in a implied a right not to bejrosecuted upon liminary showing that a false statement know Pioneer and Populist State, 17 WILLAMETTE ingly or mtentionally, or with reckless disregard L. REV. 757 n.2 1981. evidence so securecL" Oregon’s per for the truth, was included by the affiant in the sonal rights rationale, in contrast to fed warrant affidavit, and if the allegedly false state ‘4Sterling v. Cupp 290 Or. 611,614,625 P.2d eral deterrence theory, necessarily leads ment is necessary to the findmg of probable 123, 126 1981 Linde, J.. Orgon Supreme to the exclusion of evidence obtained cause, the Fourth Amendment requires that a Court Associate Justice Wallace F. Carson Jr., heanng be held at the defendant’s request. In the cogently summarized the underlying rationale of pursuant to a state subsequently found event that at that hearing the allegation of perjury the Oregon nile as well as the application of it in unconstitutional. or reckless disregard is established by the defen a speech to the Oregon Criminal Defense Law dant by a preponderance of the evidence, and, yers Association on.March 24, 1983. For a with the affidavit’s false material set to one side, slightly revised version of the speech, see Car In Oregon and across the country, count the affidavit’s remaining content is insufficient son, "Last Things Last": A Methodological AR less stateconstitutional claims inherent in to establish probable cause, the search warrant proach to Legal Argument in State Courts, 9 seizure must be voided and the fruits of the search ex WILLAME1TE L. REV. 621 1983. search and cases await appellate duded to the same extent as if probable cause recognition. In making state constitu Id. was lacking on the face of the affidavit. at See Michgan v. Lenj, 463 U.S. 1032 1983; tional claims, instruct the court how to 155-56. Pruneyard Shopping Center v. Robins, 447 U.s. analyze the provision at issue and exain 74 1980. why the claim deserves recognition. To tmUnited States v. Leon, 468 U.S. 897,9261984. that end, relentless research and hide ‘6See Collins & Gaile, Models ofPost -lncorpo ration Judicial Review: 1985 Survey of State pendent judgment will go far. In the em 9This is so even though the Court has held that Constitutional Individual Rights Decisions, 55 powering words of Justice Hans Linde: "all ev,denëe obtained by searches and seizures U.CIN.L. REV. 317 1986; Collins, Gaile & in violation of the Constitution is, by that same Kincaid, State HighCourts, State Constitutions, authonty, inadmissible in a state court." Mapp v. and Individual Rights Lit itation Since 1980: A What the life of the law of search and seizure Ohio, 367 U.S. 643, 655 1961. Judicial Survey, 14 HASTINGS CONST.L.Q needs is more logic, not more experience... 599 1986. Cf Delaware v. Van ,4rsdall, 475 The rule that searches must be judicially t0lllinois v. Krull, 107 S.D. 1160, 1167 1987. U.S. 673, 689-780 1986 Stevens, J., dissent-

JUNE 1992 IThe Advocate 134 U.S. 673, 689-780 1986 Stevens, J., dissent searched". ing. " See supra note 3. 17A striking example of the Oregon Supreme We the Court’s willingness to independently analyze a ‘See State v. Valentine/Durroch, 264 Or. 54, state constitutional counterpart to an amendment 504 P.2684 1972. People of the of the fed ral Constitution other than the fowih us found in an obscenity case called State v. v. United States, Henry, ‘3S,tate Davis, 295 Or. 227,234,666 P.24 802, 302 Or. 510, 7321’.2d 9 1987. 806-07 1983. The Davis court did not mince words in criticizing the deterrence rationale for in Order to ‘8See Carson, sIQra note 14, at 647-48,652. "It the exclusionary nile. is fiction too long accepted that provisions in form a more state constitutions textually identical to the Bill 261d.,at235,666P.2dat807. Thus,Oregondoes of Rights were intended to mirror their federal counterpart. not recognize the good faith exception to the perfect The lesson of history is otherwise: exclusionary rule adopted in United States v. the Bill of Rights was based on corresponding Leon, provisions of the first slate constitutions rather 468 U.S. 897 1984. than the reverse." 1 B. SCHWARTZ TIE BiLL I OP RIGHTS: A DOCUMEITTARt HISTORY t1See supra note 10 and accompanying text. 383 1971. See Carson, supra note 14, at 652. 14 ‘9See supra text accompanying note 14. 8State v. Brown, 301 Or. 268,283-98,721 P.24 %response to an arjument that textual sinti 1357,1366-751986. My reluctance on thepart lanties between the Oregon and Untted States of state court judges to independently interpret Coristitiuions ought to beget similar results, Jus such slate constitutional guarantees will diminish tice Linde responded: to the extent that the state constitution is placed in the forefront of state legal analysis. Accord ingly, urge your professional associations to Diversity is the price of a decentralized legal sponsor or commission historical and methodo system, oritsjustification, and guidance on coin- logical state constitutional studies; pressure law mon issues may be found in the decisions of other school faculty to make state constitutional law state courts as well las m those of the United pastoftht law school’s curriculum and thefocus States Supreme Court. The slate argues, cor of a symposium; persuade the fearless leaders of rectly, that diversity does not necessarily mean law reviews, the editors-in-chief, o incessantly that stale constitutional guarantees always are solicit articles concerning the slate constitution; more stringent than decisions of the Supreme write such articles and, last butnot least, sponsor Court under their federal counterparts. A state’s state constitutional law-writing contests. view of its own guarantee may indeed be less stringent, in which case the slate remains bound to whatever is the contemporary federal rule. Or it may lie the same as the federal nile at the lime ofthe state court’s decision, which ofcoursedoes not prevent that the state’s guarantee will gam differ when the United Slates Supreme Court revises its interpretation of the federal counter part. The point Is not that a state’s constitutional guarantees are more or less protective in partiat lar applications, but that they were meant to be and remain genuine guarantees against misuse of the state’s governmental powers, truly inde pendent of the rising and falling tides of federal case law both in method and in specifics. State courts cannot abdicate their responsibility for these independent guarantees, at rust not unless the people of the slate themselves choose to abandon them and entrust their rights entirely to fedem! law. t State v. Kennedy, 295 Or. 260, 270,71,666 P.2d 1316, 1323 1983 citations omitted. See e.g.,Statev.Boyanovsky,304 Or. 131,743 Pid 711 1987 rejecting dictum concerning sobriety checkpoints inDelàware v.Prowse, 440 U.S. 648 1978; State v. Brown, 301 Or. 268, 721 P.24 1357 1986 revising the "automobile exception" to the warrant requirement set forth in United Stales v. Ross, 456 U.S. 798 1982; State v:Atkiisson, 298 Or. 1,688 P:2d 8321984 p rejecting warrantless nonuivestigatoiy inven tory holding in South Dakota v. Oppernian, 428 U.S. 364 1976; State v. Caraher, 293 Or. 741, 653 P.24 942 198 rejecting the federal stand ard for searches incident to arrest set forth in New York v. Belton, 453 U.S. 454 1981. Cf State v. Dunning, 81 Or. App. 296, 724 P.2d 924 1986 adhering to the refonnulation in State v. Mon tique, 288 Or. 359, 605 P.24 656 1980 of the framework for analyzing the sufficiency of an affidavit in supportof the application for a search warrant developed in Aguilarv. Texas, 378 U.S. 108 1964, and Spinelli v. United States, 393 U.S. 410 1969, while implicitly rejecting the Umte4 States Supreme Court’s abandonment of the Aguilar.Spinelli framework in Illinois v. Gates, 462 U.S. 213 1983. 22 See State v. Ansoach, 298 Or. 375, 380-81,69 P24 602,605 1984 olding that the "probable cause requirement means that the facts upon which the warrant is premised must 1ed a tea sonablepersontobelievethatseizabjetlwigs will probably be found in the location to be

JUNE1992 /TheAdvócate 135 Importance of Civil Liberties to the FBI

Constitutional Limits on Police Authority

I want to take this opportunity to commu techniques-what they are and how and and Clyde and John Dillinger, when most nicate about an issue that is very impor why we use them; how we balance our criminals were within the reach of the mitt to me and to everyone at the FBI- use of them against the privacy rights of ann of the law. Today’s criminals insu the importance of civil liberties. And individuals, and what successes we’ve late themselves from the law by sur then, I want to give you a better under had with them. rounding themselves with others who do standing of the challenge that the FBI their bidding for them. Today’s criminals faces: balancing the use of sensitive in As Americans, we are offended by any have also taken advantage of the ad vestigative procedures that penetrate intrusion into our private lives. We don’t vances in technology and now possess criminal organizations with the rights of want our telephones tapped. We don’t cellular telephones, beepers, and the like. the individual. want to be watched as we go about our daily business. We don’t want to be We are dealing witha whole new class of I begin with a story about a city in south searched. criminals, criminals like the terrorist and ern Florida that is being torn apart by the drug kingpin, both of whom were drugs. In Miami, drug dealers can be But we get angry if our society is not virtually nonexistent 40 or 50 years ago. found everywhere, violent crime is ram protected from those who want to do it These new types of criminal organiza pant, young people despair of ever get harm. We don’t want terrorists to kidnap tions often times can’t be penetrated by ting out of their situations, and older peo or kill innocent people. We don’t want our more traditional investigative tech ple fear walking the streets at night. The spies to sell our nation’s secrets to our niques. We need techniques that will FBI decided to do something about it. enemies. We don’t want drug dealers ru reach into these criminal enterprises at ining the lives of our children. their highest levels. Inmid-1987, agents fromourMiami field office began an undercover drug opera How can the FBI-which is chargedwith I’d like to focus on 3 of these techniques tion by setting up a electronics store in enforcing the federal laws that protect our that facilitate our mission to reach into the Hialeah, Florida. These undercover society-bring terrorists, spies, and drug upper echelons of these criminal organi agents, knowing that one of the vulner dealers to justice and, at the same time, zations- 1 informants, 2 court-author abilities of drug traffickers is the fact that protect the rights and freedoms of the ized electronic surveillance, and 3 un they must communicate with each other, individual? I think the answer is clear: dercover operations. were able to gain the confidence of a Through the lawfuluse of sensitive hives number of Colombian drug traffickers by tigative techniques. INFORMANTS selling them beepers, cellular phones, navigational devices, and short-wave ra Iknow that some people worider why we First, a few words about informants, In dios. Through the use of sensitive inves need to use these techniques. Why not formants are called the single most im tigative techniques-informants, elec just do what the FBI has done for years- portant investigative tool in law enforce woniç surveillance, and undercover op interview witnesses, search crime scenes, ment. The greatest problem in solving a erations-the FBI was able to obtain in physically observe a suspect until he or crime is knowing who committed the formation about drug shipments. We de she is caught in the act. Well, these more crime, and this is where the informant is termined the locations of cocaine-laden traditional investigative techniques may important. The word "informant" some freighters and sailboats in the Caribbean be enough to catch bank robbers, kidnap times has a negative connotation, but the and the Gulf ofMexico which were head ers, can thieves, and the like. FBI informant category includes any in ing toward the United States. dividual who willingly provides informa But, what happens if there are no wit tion of a general criminal nature and re As a result of this investigation, 92 people nesses to question, no crime scene to quests confidentiality. The motivation of in the United States and abroad have been search, and no suspects to follow? Who these individuals maybe moral, patriotic, indicated. But, even mOre importantly, do you question about a Colombian drug. or self-serving; but, the end result of in we severely disrupted the ability of these trafficker? What physical evidence does formant cooperation solves cases and Colombian drug cartels to transport and a corrupt public official leave behind? brings criminals to justice. distribute their drugs in the United States. And, how do you even begin to develop serious suspects of a bombing if a number We use informants to get infonnation on INVESTIGATIVE TECHNIQUES of terrorist groups claim responsibility criminal activity; we use them to recover MUST BE LAWFUL for the deed? stolenproperty, to locate wanted persons, and to detect crimes in the planning We could not have done this without the Today, criminals are much more sophis stages. Above all, we use informants to use of sensitive investigative techniques. ticated than their counterparts of 40 or 50 put our undercover agents in contact with Today, I’d like to reflect on some of these years ago. Gone are the days of Bonnie criminal organizations.

JUNE1992 ITheAdvocaje 136 How do we choose our informants? Ob was arrested outside the United States Title ifi Electronic Surveillance has a viously with great care, since we can- and returned for prosecution to the numberof safeguards built in to the stat and have-had some backfire on us. United States for a violation of recently- ute, including a requirement to discon First, we look for someone in a position passed extraterritorial legislation. This tinue the interception during anon-crimi to furnish information or provide opera legislation gave the FBI extended juris nal conversation and when attorney-cli tional assistance, and second, we look for diction in certain terrorism matters and, ent privilege might be involved. These someone who is willing to help. I want to among other things, made it a criminal minimization measures protect the indi emphasize that we don’t use informants offense to take a U.S. person hostage vidual’s privacy and maintain a proper indiscriminately, If we can obtain the during a terrorist act. standard of fairness. The application and same information in another, less intru the affidavit submitted by the FBI Title sive manner,we generally do. ELECTRONIC SURVEILLANCE ifi Electronic Surveillance must include a description of the minimization meas The FBI protects its informants by keep Now, I’d like to turn to the use of court- ures that the bureau plans to take. ing their identities secret, but we also authorized electronic surveillance, one of make sure that each informant is operated the most effective and valuable tech A good example of the effectiveness of in strict compliance with attorney general niques used in both criminal and national court-authorized electronic surveillance guidelines. We keep records of what the security investigations. is the recent case concerning alleged informants have been instructed to do, bribery and fraud in the Pentagon’s pro what they have done, what they have With Title ifiof the Omnibus Crime Con curement process. been paid, and what they have produced. trol and Safe Streets Act of 1968, and the We regularly check the informant’s in- addition of the Electronic Communica This 2-year investigation, conducted formation to make sure the individual is tións Privacy Act of 1986, Congress pro jointly by the FBI and the Naval Investi truthful and reliable, and we periodically vided the comprehensive statutory basis gative Service, made extensive use of review the informant’s file to ensure the for using court-authorized electronic sur electronic surveillance. As a result of this informant is being operated in cornpli veillance in investigating violations of surveillance, we were able to identify ance with FBI rules and procedures as certain major federal criminal statutes. individuals involved in improper deal well as the attorney general guidelines. These violations include organized crime ings between consultants, some defense activities; murder, kidnaping, robbery, or contractors and certain government offi FBI informants are not used by the FBI extortion; obstruction of justice; hostage- cials. The first indictments are guilty to circumvent legal or ethicalrestrictions. taking; mail fraud, and the manufacture pleas in the case were handed down last They are given specific instructions not of, or traffickingin, narcotics, marijuana, month, and more are expected. to participate inacts of violence, use un or other dangerous drugs. lawful techniques to obtain information, Up to now, I’ve been talking about using or initiate a plan to commit criminal acts. However, since electronic surveillance is these sensitive investigative techniques Thy are advised that if they violate our such an intrusive technique, we must in criminal investigations. I just wanted rules, they will be subject to prosecution meet very stringent requirements and to let you know that these same tech by either federal or local authorities. show probabk cause that evidence of niques, when used in foreign ounterin criminal activity will be intercepted by it telligence investigations, are managed Informants work. Strategically-placed before a federal judge will approve the much the same way. The restrictions and informants have been at the core of virtu application. And, we use it only in in- guidelines which the bureau must follow ally every major long-term organized stances where other investigative tech in cases ofnational security are as equally crime, drug, white-collar crime, and do niques would notor could not work. stringent because of the very nature of mestic terrorism investigation conducted foreign counterintelligence investiga by the FBI over the past few years. For The case agent in an FBI field office tions. For example, when seeking example, in the La Cosa Nostra organ prepares the affidavit in support of an authorization for electronic surveillance ized crime "commission" case of several applicationfor the principal legal advisor of U.S. citizens under the Foreign Intel years ago, we were able to obtain indict inthe FBI field office, by the U.S. Attor ligence Surveillance Act of 1978, we ments of the leadership of 5 New York ney’s Office, and by supervisory person must establish, to the satisfaction of a organized crime families. How did we nel in the field office, If everything is in specialfederal court, that the subject is an reach this leadership? From evidencethat order, it is then sent to FBI Headquarters agent of a foreign power. came from court-authorized electronic in Washington. At headquarters, our Le surveillances; and from infonnants who gal Counsel Division, Criminal Investi UNDERCOVER OPERATIONS provided us with the information we gative Division, and attorneys at the De needed to show probable cause in order partment of Justice DOJ scrutinize The third type of investigative technique to get the electronic surveillances in the every affidavit in support of the applica I’d like to talk about is the undercover first place. tion. We then refer the application, in operation. Over the years, undercover cluding the affidavit, to the Attorney operations have become very glamor Also, in a 1987 case I’m sure you’re all General, or his designee, for authority to ized, but our undercover agents are familiar with, the FBI was able to arrest file it in federal court. The application is trained professionals who work long and a Lebanese terrorist in international wa then submitted by a U.S. Attorney to a hard to infiltrate criminal organizations. ters in the Mediterranean because of the District Court Judge. When the applica It’s not easy to associate with criminals assistance of an informant. As you may tion involves particularly sensitive cir every day for extended periods of time. recall, this terrorist was an alleged par cumstances, my special assistants and I Our agents also face a great deal of dan ticipant in the hijacking of a royal Jorda also carefully review and approve it. ger. But, because of their work, we are man airliner in Beruit, Lebanon, which able to reach into the upper echelons of held anumber ofU.S. nationals. Without Once the application is authorized by the criminal organizations, bring their lead the use of an informant, he would prob federal judge, it is good for up to 30 days, ers to justice, and put them out of bus i ably still be at large. and we prepare reports periodically to ness. keep the judge abreast of what is happen Incidentally, the arrest of this terrorist ing. We must reapply for extensions, if An undercover agent can provide first marked the first time that an individual we need them, every 30 days. hand testifiionyina court of law relating

JUNE1992 ITheAgivocate 137 to the nature and scope of the criminal number of other factors-such as the risk TRAINING ON BILL OF RIGHTS activity, the extent of invplycmQnt of ofinvasion of privacy, the risk of harm to various offenders, and the location of the private individuals or undercover éth And, in order to’ensure that these sensi- evidence. This testimony, along with the ployees, and the suitability of undercover tive investigative techniques continue to physical evidence and the information employees of cooperating private indi be used by our agents in a fair and lawful obtained from electronic surveillances, is viduals participating in the activity. manner, we provide a wide variety of an unbeatable combination in the court legal training to our special agents. Our room. The committee then forwards its recom new agents are required to take legal mendations to Floyd Clarke, the head of courses on, among other things, the Con The use of undercover agents who can our Criminal Investigative, for fmal ap stitution and the Bill of Rights. These then testify in court about a crinilnal en proval. If, however, the operation in courses are designed to sensitize the terprise increases the chance of convic volves particularly sensitive circum agents to the constitutional limits on their tion. That means that it’s not always nec stances, the committee forwards its rec authority. essary to offer immunity or reduced ommendations to me directly for my ap charges to defendants or to use convicted proval. Our special agents in the field, as well as felons or former confederates in order to those at FBI headquarters, regularly at prosecute higher echelon subjects. It also The FBI has had many, many successful tend legal seminars, in-services, and re means that our informants often won’t undercover operations that have struck at fresher courses on the latest legal issues. have to testify in court, so that their iden the very heart of some criminal organiza tities remain secret, they will be safe from tions. One example I’d like to share with Here in the United States, as we have for physical harm, and they can continue to you is a 3-year money-laundering inves over 200 years, we pride ourselves on the provide us with information on other tigation we called "Cashweb/Express rights our Constitution guarantees each matters. way." The purpose of this investigation citizen. Many other nations do not have was to identify and gain enough evidence such rights. We also pride ourselves on As with other sensitive investigative to prosecute individuals at the highest the knowledge that we are able to live techniques used by the FBI, undercover levels of 3 money-laundering syndicates freely and safely in our society. operations are conducted under strict At operating in South America and the torney General guidelines and are subject United States. The FBI is responsible for enforcing the to many levels of FBI approval before federal laws that protect our society with they can actually be implemented. And, During "Operation Cashweb," FBI un out infringing on the tights ofthe individ like the use of informants and court- dercover agents operating out of a num S. How can we strike a balance? By authorized electronic surveillance, un ber of FBI field offices were able to work conducting lawful investigations-by dercover operations are used only if more their way into the inner-sanctum of these following closely our statutes, guide traditional investigative techniques Colombian drug-trafficking organiza lines, rules, and regulations; by striving would not or could not work. tions by gaining the confidence of their for fairness; and by seeking to always members. Our undercover agents were balance the concerns of liberty and order. Inaccordance with the Attorney General asked to transfer almost one-half billion guidelines, there are 2 kinds of under dollars in drug proceeds to Colombia. WILLIAM S. SESSIONS cover operations conducted by the bu They actually laundered approximately Director reau. One type, which is approved at the $175 million. Federal Bureau of Investigation field office level by the special agent in Washington, D.C. 20535 charge, or SAC, involves the gathering of As a result of the "Cashweb" investiga infonnation on a limited basis with lim tion, the FBI arrested the hierarchy of 3 Remarks made before the Harvard Law ited funds. The second type, which in major Colombian money-laundering or School Forum, Cambridge, Massachis volves a substantial expenditure of ganizations. We also seized 2,500 setts, February 8,1989 money and/or "sensitive" circumstances, pounds of cocaine, 22,000 pounds of must be approved by headquarters. marijuana, and $25 million in cash. Wi//lain S. Sessions received his J.D.from Baylor University School of Law. He was The approval process for an undercover We could not have concluded this inves appointed US. Attorney for the Western operation is very stringent and must be tigation successfully without the use of District of Texas in 1971. He was U.S. followed every time an operation is pro undercover agents who had direct contact District Judge in 1974 and became Chief posed. It begins in the field, when the with members of these drug cartels. Judge of that court hi 1980. He resigned undercover scenario is prepared. As I that position on November 1, 1987 to be said earlier, if the operation involves a ACCOUNTABLE TO THE PUBLIC come Director ofthe F.B.I. limited amount of information gathering and funds, the SAC can approve it. But, When using any sensitive investigative any other undercover operation scenario technique, whether we are dealing with must be forwarded from the SAC to FBI criminal activity or threats to national headquarters. security, the FBI is always fully account able to the public through the provisions Once at headquarters, the operation sce of the Freedom of Information-Privacy nario goes to the Criminal Investigative Acts, through the close scrutiny of the Division, which reviews it and then sub media, and through various Congres mits it to our Undercover Operations Re sional Oversight Committees. My assis view Committee. This committee is made tants and I have testified and will con up of representatives from the Criminal tinue to testify on Capitol Hill on the Investigative Division, the Legal Coun value of using sensitive investigative sel Division, and attorneys for the De techniques. We are also willing to listen partment of Justice. These repre to recommendations made by these com sentatives carefully assess the benefits of mittees on how we can better serve the the undercover operations, as well as a public.

JUNE1992 IThe Advocate 138 AMERICA’S UNFUNNIEST HOME VIDEO

After the third or fourth time I watched With the video, however, this is clearly a the police deparunents to make certain the national broadcastof the home video case worthy of the skills of John Wilkes that the wrong message isn’t sent to the showing Los Angeles police officers us whose exploits in successfully defend few renegade officers who give a bad ing an unarmed suspect for billy club ing the hopeless case are chronicled in name to the majority who serve and pro practice, I have to confess that my de issues of The Cha4npion. The video was tect with honor and distinction. We are fense lawyer instincts book over and I unfortunately ofexcellent quality, having told that there is no need to listen to found myselfless interested in thebrcken been shot with the same type of low lux citizens who provide credible accounts of bones of the alleged victim and more camera made famous by Rob Lowe. You how a few bad officers with a vocabulary interestedhow the criminal defense law could almost hear the wheels of the de apparently limited to the phrase "assume yers representing the officers were going fense lawyer’s brain as they obtained re the position," stop and frisk people for to pull this one out of the fire. peated continuances - for arraignment, no little more probable cause than the color less. Having occasionally found myself of their skin. As any defense lawyer knows, repre on the wrong side of the hopeless case, I senting a police officer charged with a found myself developing a deep profes There is a serious potential problem for crime allegedly committed while on duty sional respect for the defense team. police misconduct everywhere, and is usually a piece of cake. Most often, criminal defense lawyers know this better juries are willing to accept a police offi "What could they possibly be up to?" I than most. The problem is only made cer’s version of events regardless of the asked myself. Were secret negotiations worse by police commissioners like number of other witnesses or the implau underway for dismissal of charges in ex Daryl Gates who publicly stated that cas sibility of the account. How many times change for testimony against Daryl ual drug users should be taken out and have jurors sat with straight faces while Gates? Were they doing the "Rope a shot, and that the reason so many Blacks an officer testifies in a resisting arrest Dope" hoping the continuedpretrial pub die from officer choke holds is that their case along the lines of the following: licity would form the basis of changing necks are different from "normal peo ‘Tien the suspect threw his head at my venue to Little Rock, Arkansas? Were ple." fist and thrust his stomach into my knee. they simply stalling, hoping forhelp from As I held up my billy club to defend on high? Please don’t get me wrong. I have the myself, the suspect backed into it at a highest regard for the great majority of rapid rate of speed causing me to be Within days my question was answered. police officers. In addition to being re fearful for my life." In a drug case, the It caine from the United States Supreme sponsible for most of our business, their scenario goes something like this: "As I Court which ruled, in a landmark reversal job is a most difficult one which is not stood at the foot of the suspect’s drive of prior cases, that coerced confessions made easier by a few high profile bully way approximatelyone quarter of a mile may, under some circumstances, be boys. If history has taught us anything from the house, I detected the distinct proper. The defense was now as clear to about law enforcement it’s that it is un odor of light green growing marijuana me as the proverbial diamond bullet to wise to avoid facing up to the reality of emanating from the rear upstairs bed the brain. The officers were simply ques police misconduct. The few officers who room, which I recognizedfrom my expe tioning the suspect. Of course this was are the problem will see this as a "green tience to be between 20 and 25 shoots being done with a little help from a long light" or "wink" from elected officials to approximately four to five days old." shoddy shaft of lead-filled, steel-tipped, use whatever means necessary to deal North Carolina hickory, which they af with crime. It is at this point that the But for the home video, the Los Angeles fectionately refer to as "The Interroga police become part of the problem in- officers’ defense would be the simple and tor." Now that California has adopted a stead of the solution. Criminal defense straightforward "Swarm of Killer Bees" federal interpretation of its state’s consti lawyers have a large role to play in seeing defense: "As the suspect exited his vehi tution, they might even get "good faith" that this doesn’t happen here. cle he was suddenly attacked by a swarm exception instructions from the right of Killer Bees which crossed the border judge. What initially looked like a hope near Tijuana four days earlier. At great less case was now a dead-bang winner. MIKE FROST risk to themselves, officers attempted to EvenJohn Wilkes would be proud. WACDL President interdict the bees using the safest weap ons available under the circumstances - This could only happen in Los Angeles, their billy clubs?’ When used properly, right? Wrong. We are told that we live Reprinted with permission from Wash this defense has the additional advantage in the great Northwest where "police ington CriminalDefense, Vol.5#2,M’, of a likely commendationfor bravery and bashing" is where the police are the 1991. can form the basis of a later disability bashees as opposed to the bash-ors. We claim for injury to the officer’s rotator are told that there is no need to watchdog

JUNE 1992 IT/re Adi’ocate 139 PRIVACY AND THE BILL OF RIGHTS

Thus, like the formal Vice, Inequity, I members of the public for reasons of there is a substantial body of United moralize two meanings in one word. -Shakespeare, business, entertainment, or the like." States Supreme Court law holding that the UnitedStates Constitution recognizes For Richard Ill, Actifi, Scenel the Texas Court of Appeals, adjudi certain aspects of human life as being so cating a defamation claim, privacymeant inherently personal, so necessarily se "the right of a person to be left alone, to in short, private, that they fall Taking its cue from Shakespeare’s Rich cluded; so ard, the law has moralized not live a life of seclusion and toe free from withinarealminto which, in the language two but any unwarrantedpublicity." of the old common law, the King’s writ many meanings in the one word, "pri vacy." runneth not. Much of the debate about the law Davis v. Buche afforded Ninth Cir of privacy stems from the seemingly in the exhaustible cuit an opportunity to canvas the law of PRIVACY IN TIlE SUPREME elasticity of the word, a word privacy that verges on meaninglessness because in the context of an inmate’s COURT it has claim that a correctional officer had dis been used to mean so many differ- played the inmate’s "intimate photo Although the concept of personal pri em things. graphs" to others. The court’s review of vacy, by whatever name described, has In Anderson v. Fisher the privacy cases lead itto conclude that been addressed by the United States Su Broadcasting the "contours [of the ht to privacy] preme Court in opinions going back at Go.1, privacy was taken to denote, "a remain less than clear." personal or cultural value placed on se least as far as 1891, the controversy iden clusion or personal control over acces tified with the "right of privacy" is of to; places Even if there were not so much difficulty relatively recent vintage. That contro or things, thoughts or acts." merely in agreeing on the meaning of versy reached its apex at the confirmation Anderson involved a tort claim, not a privacy, there would be objections to its hearings on the nominationof then-Judge criminal case; and inviteda discussion of use as aterm of art in the law. lathe Robert BorIc to the United States Su privacy as a concept in civil law. Justice words of Robert Bork, "There is, of preme Court. Bork, both in his private Linde reviewed the second Restatement of course, no general constitutional right to writings and his pronouncements from Torts, which followed the work3ofits be let alone, or there would be no law;" the bench, expressed and continues to original Reporter, Dean Prosser, and this is because "[a] general right of free express intemperate disdain for the no concluded that "invasion of the right of dom-a constitutional privacy is found privacy" mixed four distinct wrongs, re rigbt to be free of tion that a right of to be lated regulation by law-is a manifest impos in the United States Constitution. The not by similarity of defendants’ acts sibility. Such a right would posit a state necessary concomitant of his position- but onlyby "the interest of the individual in of nature, and its law would be that of the the rejection, forexample, of the Consti leading, to some reasonable extent, a jungle." tution as the source of any claimed right secluded and private life, free from the pryi%g to an abortion-likely cost him his place eyes, ears and publications of oth on the High Court. ers.’ The Restatement defmed these dis "There is, of course, general tinct no wrongs as "intrusion upon sectu constitutional right to be let Shortly after his nomination was with sion" Section 652B, "appropriation of alone, or there would be no law;" drawn, Bork left the bench and expressed name or likeness" Section 652C, "pub this is licity given to private life" because "[a] general right his views in a book entitled The Tempting Section of freedom--a constitutional of America Macmillan Free Press, 652D, and "publicity placing person in false light" right to be free of regulation by 1990. In his book, Bork discusses in Section 652E. law-is a manifest impossibility. detail his philosophical objections to the right of privacy constitutional doc Unitec States v. Westinghouse Elec. Such a right would posit a state of as Coip., describes privacy as protecting nature, and its law would be that trine. COntrasting the leading Supreme of the jungle." Court pronouncements on privacy with two kinds of interests: "One is the indi Bork’s acerbic criticisms proves a serv vidual interest in avoiding disclosure of device. personal matters,and another is the inter iceable heuristic est in independence in makingcertain As we shall see infra, a number of state Like most students of the modem clevel kinds of important decisions.’ Com constitutions provide in express terms a with monwealth v. Scagliotti, defined opment of privacy, Bocc begins pri general right to be let alone, and the states Griswold v. Connecticut this subchap vacy, in the context of a sodomy case, as which boast of such constitutional provi "removal ter of his book is entitled, "The Right of from the public view and elimi sions manage to carry on organized and Privacy: The Construction of a Constitu nation of the possibility that the defen civilized societies, not particularly more dant’s tional Time Bomb". Griswold involved conductmight give offense to per or less jungle-like than those of their sis a challenge to an old Connecticut statute sons present in a place frequented by ter states. Perhaps more importantly, making it a crime for anyone even mar-

JUNE 1992/TheAdvocate 140 -

tied couples to use, and for doctors to another direction Bork identifies Yale the Supreme Court was asked to pas s prescribe, contraception of any kind. civil libertarians, he may well be right. upon a woman’s right to abortion; the This tells us something about the genesis High Court found such a right to exist, as Justice Douglas, writingfor the majority, of the litigation, but nothing about the a function of the constitutional right of canvassed prior opinions involving merits of the opinions, or about the right privacy. claims arising under the Bill of Rights, of privacy. and concluded that the High Court had In Section WIT of his opinion in Roe, sustained many such claims even where Judge BorIc next takes on certain of the Justice Blackmun discussed the notion of the language of the applicable constitu rhetorical devices employed by Justice privacy under the federal Constitution. tional provision made no direct reference Douglas in his opinion. Admittedly, the "The Constitution does not explicitly to the right asserted. Claims brought un Justice may have gilded the lily, at one mention any right of privacy. In a line of der the First Amendment, asserting, for point declaIming, "Would we allow the decisions, however, going back perhaps example, the right to have one’s children police to search the sacred precincts of as f as Union Pacific R . Co. v. Hots- taught the German language in private marital bedrooms for telltale signs of the fort6 the Court has recognized that a school had been vindicated, even though use of contraceptives? The very idea is right of personal privacy, or a guarantee the First Amendment says nothing what repulsive to the notions of privacy sur of certain areas or zones of pri3acy, does ever about pflucation, children, or foreign rounding the marriage relationship."2’ exist under the Constitution."2 languages. Prom this, Justice Douglas Overwriting in Supreme Court prose is a deduced that; "specific guarantees in the venal, not a mortal, sin, and surely not Justice Blackmun then canvassed the Bill ofRights have penumbras, formed by one on the basis of which Bork can hope cases tracing the roots of a right of pri emanations from those guarantees that to dismast Justice Douglas’s reasoning. vacy to various specific constitutional help give them life and substance."13 guarantees, including the First, Fourth, Turning to the phraseforwitich Griswold Fifth, Ninth and Fourteenth Amend The concept, if notthe word, privacy, was is best remembered-that "specific guar ments. These cases make clear that fun often to be found in the penumbras and antees in the Bill of Rights have penum darnental personal prerogatives, such as interstices of the Bill of Rights. In con bras, formed by emanations from those marriage and family choices, are in struing the Fourth and Fifth Amend guarantees that help give them life and cluded in this guarantee of privacy. ments, for example, the Court had repeat substance"-Bork concludes that edly referred to "the privacies of life" as "[tihere i&iothing exceptional about that This right of privacy...is broad enough being at the "v4ery essence of constitu thought". The problem, according to to encompass a woman’s decision tional liberty."1 Bork, was that, whether or not to terminate her preg nancy. The detriment that the State In Mapp . oio,’5 the Court found the None of the amendments cited, and - would impose upon the pregnant Fourth Amendment to create a "right to none of theft buffer zones, covered the woman by denying this choice alto privacy, no less important than any other case before the Court. The Connecticut gether is apparent Specific and direct right carefully id particularly reserved statute was not invalid under any pro harm medically diagnosable even in to the people." Having concluded that vision of the Bill of Rights, no matter early pregnancy may be involved. Ma a right to privacy is implied by the ex how extended. Since the statute in ternity, or additional offspring, may press provisions of the Bill of Rights, question did not threaten any guaran force upon the woman a distressful life Justice Douglas had no difficulty con teed freedontt did not fall within any and future. Psychological harmmay be cluding that the Connecticut statute was "emanation," imminent. Mental and physical health destructive of"a relationship lying within may be taxed by child care. There is the zone of privacy created by several This is a curious, and somewhat circular, also the distress, for all concerned, as fundqqiental constitutional guaran bit of criticism. It begins by assuming its sociated with the unwanted child, and tees." Justice Goldberg, concurring for conclusion-that privacy is nOt a "guar there is the problem of bringing a child himself and two others, tracef the history anteed freedom", If by this Mr. Bork into a family already unable, psycho of the Ninth Amendment1 and con- means that the right to privacy is not logically and otherwise, to care for it. chided that amendment was the constitu named or enumerated in the first eight In other cases, as in this one, the addi tional source of the right of privacy, for amendments, his observation is very true tional difficulties and continuing the violation of which ie subject statute and very banal. He seems to acknow stigma ofinwed motherhood may be was unconstitutional.’ Justices -Harlan ledge that the penumbras or interstices involved. and White concurred in separate opin referred to in Griswold will support the ions; Justices Black and Stewart dis assertion of a "fundamental" albeit not To the same effect, see the concurring sented, fmding no privacy guarantee in enumerated right. Privacy, however, is opinion of Justice Stewart at 168: "The any provision or combination of provi not the right right. Griswold cites Constitution nowhere mentions a spe sions of the Constitution. Meyer, which acknowledged a constitu cific right of personal choice in matters tional due process "righL..to many, e of marriage and family life, but the ‘lib According to former Judge Bork, how tablish a home and bring up children". erty’ protected by the flue Process Clause ever, the Griswold case is not about any Thus the privacy right of a married cou of the Fourteenth Amendment covers of the issues it purports to be about. ple to choose whether or not to beget more than those freedoms explicitly Rather, "Griswold is more plausibly children, free from arbitrary governmen named in the Bill of Rights." It was not viewed as an attempt to enlist the Court tal interference, would seem to be less only to prior Supreme Court precedent in one sids of one issue in a cultural than controversial, even as a matter of that Justice Blackmun gave considera struggle." If by this he means, as he constitutional doctrine. But it is too con tion. A majority of lower courts that had appears to, that Griswold was the result troversial for Mr. Bork. considered the abortion issue had like of a difference of opinion betweencertain wise concluded that the decision whether Connecticut citizens whose views on Unsurprisingly, then, the next major case or not to continue with a pregnancy fell contraception tended in one direction in the Supreme Co2yt’s privacy pan essenally within a woman’s zone of pri BorIc identifies the Catholic community theon-Roe v. Wade -registers off the vacy. and certain other Connecticut citizens far end of Bork ‘s controversy meter. whose views on contraception tended in Roe, of course, was the first case in which ‘Prom the beginning of the Republic un

JUNE 1992 /TheAdvocatel4l til" the question in Roe, says Bork, "the Federal Constitution confers of a fun is, incidentally, no use protesting that, in moral question of what abortions should damental right upon homosexuals to our polyglot society, such notions were be lawful bad-been--left- entirely to state engage in sodomy and hence invali - notshared, at least in substantial part, by legislatures.The discovery this late in our dates the laws of the many States that all segments of our society, we simply history that the question was notone for still make such conduct fflegaand have exist as a society. If it 1 could not be democratic decision but one of constitu done so for a very long time. conceded that such decisions exist, and tional law was...implausible This ar further conceded that they can be identi gument would have some weight if Rpe Justice White, writing for the majority, fied, is there anything so wrong with’ overturned a prior line of authority hold denied that previous Supreme Court Justice Blackmun using the shorthand ing that there was no right to privacy, or authority in the area of privacy gave con "properly for the individual to make" to to abortions, implied by the BillofRights. stitutional protection to private homosex describe them? But Roe, asJudge Bork knows full well, ual conduct. was a question of first impression. If Of course our jurisprudence is full of another such question of first impression {W]e think it evident that none of the discussion ofwhat decisions are properly arises before the Supreme Court a month, rights announced in those cases [i.e. reserved to the individual and protected a year, or 100 years from now, there will cases dealing with privacy claims] from governmental intrusion. The Fifth be no impediment to its justiciability sim bears any resemblance to the claimed Amendment identifies a freedom from ply because it did not arise before 1973. constitutional right of homosexuals to self-incrimination. It says nothing about engage in acts of sodomy that is as the entitlement of an individual, subject Dismissing Justice Blackmun’s 50-plus serted in this case. No connection be to custodial interrogation, to be informed page opinion as bereft of "one sentence tween family, marriage, or procreation of his right to remain silent, nor of the that qualifies as legal argument," Mr. on the onehand and homosexual activ consequences of the waiver of that right, Bork recurs to his concern for "our cul ity on t other has been demon nor of the entitlement of that individual tural wars". Roe, says Bork, is not really strated.... to be informed ofhis right to counsel; nor an exercise in judicial interpretation, but of the consequences of his inability to rather an expression of the Supreme Judge Bork basically agrees with all this; afford counsel. In Miranda v. Arizona, Court’s commitment to something Judge but, just to be on the safe side, devotes however, the Supreme Court determined Bork deprecates as "untrammeled indi over three full pages to criticism of Jus that rights reserved to the individual un viduals." It may come as some news to tice White’s opinion, chiefly of Justice der the Fifth and Sixth Amendments defense attorneys that "untrammeled in White’s prose style. His real vithol, would be inert unless the individual in dividualism" is a bad thing, and that the however, Bork saves for the dissent. question understands that all "decisions United States Supreme Court is commit [aboutj those rights...are properly for ted to it; but Bork manages to make the Justice Blackmun, author of the Roe [him] to make." locution "untrammeled individualism" opinion, disseffed for himself and three sound as exsnffficate as "the heartbreak otherjustices. The Supreme Court, said Bork describes as "truly startling" Justice of psoriasis." Blackmun, had construed the rightof pri Blackmun’s dictum that "a person be vacy along two lines: "First, it has recog longs to himself and not others nor to Roe represented the next logical step in nized a privacy interest with reference to society as a whole." This, says BorIc, is the development of a concept that had certain decisions that are properly forthe "rampant individualism," "a position of figured in United States Supreme Court individual to make. E.g., Roe v. extreme individualism."37Court watch jurisprudencefor 80 years. That its doc Wade...Second, it has recognized a pri ers among the criminal defense bar have trine was novel, and remains controver vacy interest with reference to certain yet to notice this epidemic of individual sEal, does not invalidate it as constitu places without regard for the particular ism ravaging the Rehnquist court. Be tional jurisprudence. Brown v. Topeka activities in which the indjviduals who that as it may, what is "truly startling" is Board of Education was just such an occupy them are engaged." 4Bork states that a formerfederal judge emphatically extrapolation of existing law. In any baldly, "Neither of these [rationale] rejects the notion that, in our democracy, event, although theexistence ofa right to withstands even cursory examination." a person belongs to himself and not oth abortion may depend upon the existence ers nor to society as a whole. That the of a constitutional right of privacy, the law imposes many obligations on each of existence of a constitutional right ofpri The notion that certain decisions are pri us, as Mr. Bork reminds us, is hardly to vacy does not depend on the existence of vate in the sense that they are "properly say that each of us belongs to society as a right to abortion. The overturning of for the individual to make" is repugnant a whole. The principle advantage by Roe v. Wade was adwnbrated in Webster to Mr. Bork, because "[w]hat is proper which democracy recommends itself is v. Reproductive Health Services, is not an objective fact but a moral that it requires each ofus to cede the least __US__ July 3, 1989, and may be choice," which- choice should not be part of our personal freedom and preroga brought to fruition by a Supreme Court made by the Supreme Court. Plucking a tives in order to secure the greatest part. on which Justice Souter has replaced Jus word out of context-here the word This has been fundamental democratic tice Brennan. Whether abortion is a good "properly"-is always a dangerous busi political theory at least since the time of thing depends on one’s politics, philoso ness; especially where, as here, the word John Locke. phy, and theology; but if the overturning is an ordinary one,notparticularly central of Roe were to be taken as a repudiation to the sentence in which it appears. Judge Bork is similarly unsatisfied with, of privacy as a constitutional principle, Surely even Judge Bork would concede "[t]he dissent’s second line of argument, our lives and our constitutional- law that some decisions are consigned to the that a right of privacy attached because would be immeasurably impoverished. individual and denied to government in Hardwick’s behavior occurred in his own any society aspiring to the title "democ home.... The Fourth Amendment...does Bowers v. Hardwi&°involved a chal racy." Is it too much to suggestthat some, not even remotely suggest that anything lenge to a Georgia statute criminalizing if not all, of these decisions can be iden done in the home hfr additional constitu homosexual sodomy. In the Court’s tified by reference to our Constitution, tional protection." This statement sim view, our Supreme Court jurisprudence, and ply flies in the face of volumes of Su our shared notions of what is hwlicit in preme Court jurisprudence. Certainly The issue presented is whether the the concept of ordered liberty?’ There the High Court has had no difficulty, in

JUNE 1992/The Advocate 142 lifetime -‘-.---- -. I__.’_ . - . .- .. .. *,

recent years, ascribing a diminished ex men.43 Of all decisions a person makes about pectation of privacy to places other than his or her body, the most profound and the home, on no other grounds than that Fifty years later,Justice William Brennan intimate relate to two sets of ultimate only the home is entitled to the highest urged state judges to look to their own questions: first, whether, when, and level of privacy. or example, in Cali state constitutions for the vindication of how one’s body is to become the vehi fornia v. Carney,3 the Court determined those fundamental rights that the United cle for another human being’s creation; that because a mobile home is more like States Supreme Court was increasingly second, when and how-this time there a car than a house, the occupant’s expec unwing to fmd in the federal Constitu is no question of "whether"-ons tation of privacy was reduced. A man’s tion. To the extent that the development body is to tenninate its organic life. car is not his castle. of the law of privacy in the state courts is merely a symptom or example ofa larger - The decision whether to obtain an abor Many Americans-lawyers and laymen phenomenon-the development of state tion is fraughtwithspecific physical, psy al&e-.-probably believe that what a man constitutional rights as "rights of first chological, and economic implications of - does in his own home is his own buiness, resort" in state decisional law-Oregon a uniqijely personal nature for each provided it harms no one else. This Supreme Court Justice Hans Linde may woman. principle, if it is a principle, ought not to fairly claim that his writings, both on the protect Hardwick’s conduct, says Bork, benc and in the literature, showed the Having once concluded that the provi because, "[k]nowledge that an activity is way. sions of the Florida privacy guarantee taking place is a hann to those who find insure far-reaching protection for a it profoundly immoral." To illustrate his Perhaps, however, it was the United woman’s abortion decision, it was a small point, Mr. Bork offers this hypothetical: States Supreme Court itself that told the matter to conclude that "even" minors state courts to develop the law of privacy share in the benefits of privacy. "The as part of their own constitutional gris right of privacy extends to ‘[elvery nato- Suppose...that on an offshore island prudence. In Katz v. United States, the ml person.’ Minors arenatural persons in there lived a man who raised puppies High Court warned that, "the protection the eyes of the law and ‘[c]onstitutional entirely for the pleasure of torturing of a person’s general right to privacy- rights do not mature and come into being them to death. The rest of us e not his right to be let alone by other people- magically only when one att4ns the required to witness the torture, nor is...left largely to the law of the individual state-defmed age of majority." In the can we hear the screams of the ani States." court’s view, neither the state’s interest mals. We just know what is taking place in the pregnant - minor or her fetus, nor and we are appalled. Can it be that we The states were not unwilling to respond. even a parent’s interest in his or her preg have no right, constitutionally or mor Floridais one ofat least four states having nant child were sufficient counterweights ally, to enact legislation against such its own express constitutional provision to the constitutional principle ofprivacy. conduct and to enforce it against the guar9lyeeing an independentright to pri sadist7 vacy. Another half-a-dozen state con stitutionsjt least make some reference to BROWNING Whatever the merits of this juicy hypo privacy. thetical, conduct between sadists and In In re: Guardianship of Browning,2 helpless puppies canhardly be described T.W. - the privacy issue was not "whether, as mutually consensual. By contrast, the when, and how one’s body is to become Georgia statute forthe violation of which Although the Florida right of privacy has the vehicle for another human being’s Hardwick was arrested proscribes, on its been part oh the Florida Constitution creation" as in T.W., but was "when and face, mutually consensual oral sex be since 1980, important decisions con how-this time there is no question of tween husband and wife in the "sacreq struing that riit have begun to appear in ‘whether’-one’s body is to terminate its "i precincts of [the] marital bedroom[...} recent years. In October of 1989, the organic life." In 1985, a then-competent state supreme court droppd a small Estelle Browning executed a declaration PRIVACY IN TILE STATE bombshell called In re: T.W. 1 in which providing, inter alia; COURTS it held that the right of privacy rendered unconstitutional a statute requiring a mi If at any time I should have a terminal Many opinions, dissents, commentaries nor to obtain parei4al consent before get condition and ifmy attending physician and snippets of dictum could boast of ting an abortion. Unsurprisingly, the has determined that there can be no being the seminal contribution to the de T.W. court began its analysis by canvass recovery from such condition and that velopment of privacy Jaw in state courts ing the federal law on the subject, starting my death is imminent, I direct that life- and constitutions. - As early as 1928, in withRoe. prolonging procedures be withheld or uplifting rhetoric that has been cited in withdrawn when the application of untold numbers of cases, Justice Bran According to the Florida court, Roe ac such procedures would serve only to deis sometimes identified as the father knowledged, "a right to privacy implicit prolong artificially the process of dy of the law of privacy wrote: in the Fourteenth Amendment [which] ing. embraces a woman’s decision concern The makers of our Copzstitzgtion under ing abortion. Autonomy to make this de Some time later, Mrs. Browning suffered took to secure conditions favorable to cision Lonstitutes a fundamental a massive stroke, rendering her entirely the pursuit of happiness. They recog righL...’ Above and beyond federal unable to carefor herself. She was fed by nized the significance of man’s spiri constitutional guarantees, however, flor means of a tube inserted directly in her tual nature, of his feelings and of his ida’s right to privacy, "is clearly impli stomach; in 1988, this gastrostomy tube intellect.... They sought to protect cated in a woman’s decision of whether was replaced by a nasogastric tube. Americans in their beliefs, their or notto continue her pregnancy. We can thoughts, their emotions and their sen conceive of few more personal or private Nearly twd years after Mrs. Browning sations. They conferred, as against the decisions concerning one’s body that on suffered her stroke, her court-appointed Government, the right to be let alone- can make in the course of a guardian petitioned the court to terminate the most comprehensive of rights and The court cited Professor Tribe for the the nasogastric feeding and allow Mrs. the right most valued by civilized - - principletllat: -- Browning to die. Evidence adduced at the

JUNE 1992 /TheAdvocatel43 :h ensuing hearing, including Mrs. Brown trial court granted a pre-trial motion recognized by this court [of an individual ing’s "living will," a portion of which is claiming that the Florida obscenity stat to read or view obscene materials in the extedaboveeISrI esth151i11edthat; ute was unconstitutional as violative of privacy of his own--home] tecessari4y at times when she was competent, Mrs. the right to privacy. The intermediate must include a right of discreet access to Browning stated her desire that her life appellate court reversedM and the stage entertainment, writings, and other such never be artificially prolonged by such was set for rview by the Florida Su material if the state cannot show that extreme measures as those to which she preme Court. - those materials are actually harmful to was now being subjected. Medical evi specific persons or tlt they intrude upon dence established that death would occur The court began by recognizing a crucial therightsofothers." Thisisso.inpart, within four to nine -days were the distinction. Although "research dis because the Floridaright to privacy is an nasogastric feeding tube removed; with closes no Florida cases where the state express and fundamental constitutional the tube in place, Mrs. Browning might prosecuted individuals merely for pos guarantee. remain alive an additional year. Conclud sessing obscene materials for their pri ing that death was not"immii ent" asthat vate use" and although such awosecu The federal right to privacy-if such a term is defined in florida’s "Life-Pro tion would be unconstitutional; "this is thing exists-exists only as shadows or longing Procedures Act," the trial judge not to say, however, that our privacy penumbra of express constitutional guar denied the guardian’s application. amendment was meant to protect those antees. Federal courts thus have no man persons who deal commercially in ob date to give an expansive interpretation As the Florida Supreme Court saw it, the scenity." Before the right of privacy at to such an implied right. But the Florida statute was inapplicable and "Mrs. taches, a reasonable expectation of pri right to privacy is entitled to the most Browning’s fundamental right of self-de vacy must exist. Although one may pos expansive interpretation; indeed, by defi termination, commonly expressed the sess obscene material in one’s home, the nition, privacy under the Florida Consti right of privacy, controls this case." By court found that there is no legitimate tulion must be broader and deeper than privacy, Justice Barkett the authorof the reasonable expectation of privacy in be privacy under the federal Constitution. Browning opinion meant, "a fundamen ingable to patronize retail establishments This is simply the natural distinction be tal right of self-determination subject for the purpose ofpurchasing such mate tween implied and express rights. In sec only to the state, compelling and over rial. In support of this principle-the tions IT, ifi, and IV of his dissent, Justice riding interest.’ The right to make principle that the right to possess pri Kogan provides a fascinating and ex choices pertaining to health, including vately does not equate to the right to buy haustive history of privacy as it has been the right to refuse unwanted medical or sell publicly-the court excerpted defmed and challenged in the fqderal treatment, was described as an "integral from the lower court opinion under re courts, the state courts of Florida, and component of self-determination"; "we view: the literature, both legal and popular. necessarily conclude that this righ2 en- The state, through its obscenity laws, compasses all medical choices.’ A It is clear that Florida’s right to privacy may not prohibit individuals from, "dis competent individual has the constitu is broader than the federal right. How creetly inquiring into matters that may tional right to refuse medical weatent ever, it is not sobroad that a person can interest them, whether characterized as regardless of his medical condition. take it with him to the store in order to literature, reading material, or entertain purchase obscene material-even ment." To permit such prohibition would With the foregoing in mind, it was only though he has the right to possess sih be to read the privacy guaranteeoutof the necessary for the court to determine material in the privacy of his home. Constitution. whether, in view of the undisputed in- competence of Mrs. Browning, and in Justice Barkett, author of the Browning Nor does Justice Kogan accept the no light of her desires expressed at a time opinion, dissented briefly, and noton pri tion, offered by themajority and the court when she was undoubtedly competent, vacy right grounds. For her, the problem below, that no individual can "take his the guardian could exercise for Mrs. was broader: the "basic legal problem privacy right to the store [or other public Browning the latter’s right to forego with the criminalization of obscenity is place] with him."Ifthis were true, argues medical treatment. This the court saw as that it cannot be defmed." Although both Justice Kogan plausibly, married couples a simple question. The guardianwas fully the Florida and federal Constitutions re would have a right to use contraceptives authorized to exercise Mrs. Browning’s quire "criminal laws to unambiguously but not to obtain them; or to useonly such right of privacy for her, subject to an define the elements of a crime..this contraceptivesas they couldmanufacture important caveat: crime, unlike all other crimes, depends, in their own homes. A pregnant woman not on an objective definition obvious to could "choose" only such an abortion as We emphasize and caution that when all, but on the subjective definition, first, she might be able to performupon herself the patient has left instructions regard of those who happen to be enforcing the in the privacy of her own home. Such ing life-sustaining treatment, the surro law at the time, and, second, of the par constructions of the right to privacy, of gate must make the medical choice that ticular jury or judges reviewing the course, render itno right at all; orno more the patient, if competent, would have case."69 Thus, according to Justice Bar right than Shakespeare’s Shylock had, to made and not one that the surrogate kett, the statute at issue was unconstitu take a pound of flesh from Antonio pro might make for himself or herself, or tional not on privacy right grounds, but vided he could do so without spilling a - that the surrogate niighhink is in the on due process-notice requirement drop of Antonio’s blood. patient’s best interests. grounds. Contrary to the majority’s suggestion, STALL AND LONG Justice Barkett joined a second dissent, privacy is a right that protects both this one authored by Justice Kogan and people and the aspects of their lives Tommie Lynn Stall, Todd Long, and oth running to some 30-plus pages. I cannot they havemade private. It is aright that ers, were charged with racketeering and commend this dissenting opinion highly people can carry around with them, other crimes arising out of a violation of enough; it will set the standard fordiscus evenwhen they are in public places and Florida’s obscenity statute. The statutory sion of a constitutional right to privacy stores. People do not subject them violations occurredthrough the showing, for the balance of this century. selves to unlimited governmental scru sale, distribution, and rental of allegedly tiny or intrusion into their lives simply obscene writings and videotapes. The It is Justice Kogan’s thesis that, "the right because they walk out the front doors

JUNE 1992 The Advocate 144 aggravation

of their homes enter a public place 4Restatement, Second, Torts Section Bork at 98. such as a store. 652A, comment b 1977. AMeyer at 339 Characterizing Florida’s right to privacy 5Urdted States v. Westinghouse Elec. in a fashion sufficiently expansive and Corp., 638 F.2d 570 3d Cir. 1980. 25Roev. Wade, 410 U.S. 113 1973. flexible to serve its constitutional pur poses, Justice Kogan states: 61d. at 577, citing Whalen v. Roe, 429 Union Pacfic R. Co. v. Botsford, 141 U.S. 589,599-6001977. U.S. 250, 251 1891. TheBottfin’dcase Florida’s right to be let alone actually involved a civil dispute for money dam consists of a bundle of rights. It creates 7Commonwealth v. Scagliotu, 371 ages arising out of a railroad accident. azone of privacyprotecting not merely N.E.2c1 726Mass. 1977. Defendant railroad company moved that seclusion and bodily integrity, but also the plaintiff, a female, be compelled to guaranteeing a right to structure one’s 8Gill v. Snow, 644 S.W.2d 222, 223 submit to a medical examination to deter life as one sees fit so long as no avoid Tex.Ap. 1982, citing Billings v.Atkin mine the extent of her injuries. Nowa ableharm is done to self or others. The son, 489 S.W.2d 858 Vex. 1973. days this would seem pretty tame stuff, right prohibits the government from in but the Supreme Court of 1891 was cer tervening in thenoninjurious aspects of 9Davis v. Bucher, 853 F.2d 718 9th Cir. tainly not going to order a lady to take off personal life involving matters such as 1988. her clothes in front of strangers; and in the actualization of one’s own identity, sisted that the federal courts had no spirituality, home or family life, intel 101d. at 719, citing Carey v. Population power to enter such an order. Although lect, personal opinions, and emotions. Services Int’l, 431 U.S. 678, 684-5 the facts ofBotsford have ceased to be of 1977 and Grummett v. Rushen, 779 interest, and the holding of Botsford has I believe that, of necessity, this bundle F.2d 491,494 9th Cir. 1985. ceased to be of value, Botsford features of rights includes aright to obtain non- substantial dictum extollingthe notion of injurious reading materials and enter t1Griswold v. Connecticut, 381 U.S. 479 privacy in American life and law. tainment for discreet personal use. 1965. Without such a right, the self-determi 271d. at 152. nation and self-actualization guaran ‘2See Meyer v. State of Nebraska, 262 teed by the right to be let alone would U.S. 390 .., citing Griswold at 481, 25Roeat 113. be meaningless indeed. Minds forbid 1680. den to inquire are no less enslaved than 295ee cases collected at Roe, pp. 154-5. minds whose thoughts are dictated by 13Griswold at 484, 1681. others. The right to be let alone cannot 30Bowers v. Hardwick, 106 S.Ct. 2841 be exercised if all such material, enter 14The phrases appear in Boyd v. United 1986. tainment, and information are subject States, 116 U.S. 616, which opinion also to the dictates of a community censor reminds us that, "It is not the breaking of 311d. at 2843. or thetricuires of a censorial criminal his [i.e. the householder’s] doors, and the code. rummaging of his drawers, that consti at 2844. tutes the essence of the offense; but it is MILTON HIRSCH the invasion of his infeasible right of 33Bowers at 2850 et seq. Adjunct Professor personal security, personal liberty and Nova University Law Center private prOperty.... Breaking into a house 34Bowers at 2850-i Blaclcmun, J., clis and opening boxes and drawers are cir senting emphasis in original. Milton Hirsch is a sole practitioner in Mi- cumstances of anti, Florida. A former Assistant Chief of 35Borkat 121. NarcoticsProsecutionforDade CounJy, he ‘5Mapp v. Ohio, 367 U.S. 643 1961. is an adjunct professor at Nova University v. Connecticut, 302 U.S. 319, Law Center and has written extensively on 16Mapp at 656, cited in Griswold at 485, 325 1937. the Fourth, Fflh and Sixth Amendments. 1682. President ofthe Miami Chapter ofthe Flor 37Bork at 122. - ida Association ofCriminal DefenseLaw 17Griswold at 485, 1682. Acknow yers, he was the defense lawyerfor the six ledging "many controversies over the pe 38Bork at 123. Bork has the candor to police officers in United States v. Cama numbral right of privacy, Justice Douglas admit that, "[t]hat statement will be taken cho, belier known as the "Mercado Cops" nonetheless offers a string cite of some as repressive by many." case. half-a-dozen cases, plus academic com Edited by Ephraim Margolin. mentary, in support of its existence. 39Calfornia v. Carney, 105 S.Ct. 2066 1985. "The Reprinted from the July, 1991 Champion 18The Ninth Amendment reads, ° with permission and by permission of the enumeration in the Constitution, of cer Cf. Stanley v. Georgia, 394 U.S. 557 author. tain rights, shall not be construed to deny 1969. or disparage others retained by the peo NOTES ple." 41Borkat 124.

‘Anderson v. Fisher Broadcasting Co., 19Griswold at 486-499, 1682-1690. 42Griswold at 485-1682. 712 P.2d 803 Oregon 1986 Linde, L. 20Bork, The Tempting ofAmerica here 43Olmstead v. United States, 277 U.S. 21d. at 808. inafter "Bork " at 96. 438, 478 1928 Brandeis, J., dissent ing. 3See Prosser, Privacy, 48 CalifLLRev. 21GriswokIat48S-6, 1682. 383 1960. 44"State constitutions, too, are a font of 21Bork at 97. - individuaL liberties, their protections

JUNE1992 /TheAdvocatel45 often extending beyond those required by court’s search and seizurejurisprudence. Id. at slip op. at 16 Barkett, J., dis the Supreme Court’s interpretation of senting emphasis in original. federal law. The legal revolution which has brought federal law to the fore must 51/n re: T.W., 551 So.2d 1186. 701d. at slip op. at 19-20 Kogan, 1, not be allowed to inhibit the independent dissenting. protective force of state law-for without 52"Small bombshell" does not overstate it, the full realization of our liberties can the case. Chief Justice Leander Shaw, 71The state courts of Florida havealways not be guaranteed." W. Brennan, State author of the T.W. opinion, was up for been a proving ground for the concept of Constitution and the Protection of Indi merit retention in 1990. Merit retention is privacy. As Justice Kogan reminds us, vidual Rights, 90 Harv.L.Rev. 489, 491 ordinarily just a matter of going through one of the most publicized cases concern 1977. See also Pruneyard Shopping the places, but opposition to 5Mw, based ing the common law tort of invasion of Centerv.Robins,447 U.S.74, 811980. solely and admittedly on his authorship privacy, Cason v. Basldn, 20 So.2d 243 of T.W., was fierce. Fortunately, the 1944, concerned the life of author Mar 45See, e.g ., Linde, E. Plurthus-Constitu principleof an independentjudiciary was jorie Kinman Rawlings, and her book tional Theory and State Courts, 10 vindicated and Justice Shaw was re Cross Creek. A colorful history of the Ga.L.Rev. 165 1984; Linde, First tained. litigation appears in Acton, Invasion of Things First: Rediscovering State’s Privacy; Univ.of Florida Press 1988. Bills of Rights, 9 U.Balt.L.Rev. 379 531d.at 1190. 1980. 72Stall at 42 emphasis in original. 541d. at 1192. Katz v. United States, 389 U.S. 347, 73Stall at 3 1-2. 350-1 1967. 55L. Tribe, American Constitutional Law, 1337-38 2d ed. 1988. 47See also Alaska Const. art I, 22; Cal. Const. art. I, 1; Mont. Const. art. II, 10. 56T.W. at 1193, citing Roe at 153. See also Thornburgh v. American College of Ob 48See Ariz. Const. art. II, 8; Haw. Const. stetricians and Gynecologists, 476 art. I, 6, 7; 111. Const. art. I, 6, 12; La. U.S.747 1966. Const. art I, 5; S.C. Const. art. I, 10; Wash. Const. art. I, 7. See generally, 57T.W. at 1193, citing Planned Parent Note, Toward a Right of Privacy as a hoodv. Danforth, 428 U.S. 52,741976. Matter of State Constitutional Law, 5 fla.St.UL.Rev. 632 1977. 551n re: Guardianship of Browning, No. 49Article I 23 was approved by the votes 74, 174 slip op. Sept. 13, 1990. - of Florida on November 4, 1980. It pro In my view, the Bill ofRights is critical vides: Right of privacy-Every natural 591d. at. to our system of justice, because it is a person has the right to be let alone and concise statement of the practical ob free from governmental intrusion into his 60!d. at , citing Gerety, Redefining Pri jectives of all people who seek liberty private life except as otherwise provided vacy, l2Harv.C.R.C.L.L.Rev.233, 281 andjustice. herein. This section shall not be con 1977 and Cope, To Be LetAlone: Flor strued to limitthe public’s right of access ida’s Proposed Right of Privacy, 6 While the people of other lands, most to public records and meetings as pro Fla.St.UL.Rev. 671,6771978. recenfly the people of Russia and the vided by law. Balkan states, have no clearly defined 6l except the desire to be free, at. - objective 50During the 1980’s,the FloridaSupreme and still must confront and challenge Court seemed unwilling to give content 62Accord, Cruzan a rel Cruzan v. Direc the guns and of oppression in the to the privacy clause, and was able to tor, Mo. Dept. ofHealth, 110 S.Ct. 2841, streets, the people of the United States resolve most constitutional problems esp. at 2852 1990 "for the purposes of have a written guarantee enforceable in without doing so. The court resolved this case, we assume that the United the Courts rather than by armed con many questions by reference to more States Constitution would grant a compe flict. "traditional" constitutional principles, tent person a constitutionally protected such as the state analog to the Fourth right to refuse lifesaving hydration and Nevertheless, the protection provided Amendment. Much of the Florida Su nuthtion". by the Bill of Rights can be lost by preme Court’s decisional law in the area complacency and lack of under of search and seizure was substantially 63 Id. at. standing. The dedication and vigilance more "liberal" than that of the United of thosemen and women who as public States Supreme Court. Dissatisfaction on 64State v. Long, 544 So.2d 219 Ha. 2d and private cthninal defense lawyers the part of prosecutors and right wing DCA 1989. battle to protect the rights of person groups led to the passage of an amend- accused of crime serves to protectus all us constantly reminded of - merit to the Florida Constitution obliging See Stall v. State, So.2d Fla. Oct. 11, and to keep the state supreme court to construe state 1990 Nos. 74,020 and 74,390. the importance of the Bill of Rights search and seizure law in conformity with GEORGE E.BARKER federal search and seizure law. Finding id. at - traditional avenues of analysis closed to Chief Circuit Judge it, the Florida Supreme Court then boldly 671d. at ft. 4 citing Stanley v. Georgia, Sixth Division went where no man had gone before, 394 U.S. 557 1969. Fayette County Courthouse giving new life and vigor to the state Lexington, KY 40507 guaranteeof privacy. Ironically, then, it at slip op. at 12, citing Long, 544 was the efforts of "law and order" types So.2d at 223 citation omitted. that led to hamstringing the statesupreme

JUNE 1992/The Advocate 146 ______-

APTER 12

I tunic, we Criminal Defense Lawyers are the coniervators of tile .fFirst, fFourth, 9J1hJ Sia,th, ¶Ezqhth antI fFourteenth i2lmenulments of the Constitittion. We are tile law court officers, not necessarily just those colleagues of ours that wear batiges anti service revolvers. We are law enforcement officers antithose are the rights anuiguarantees we protect.

John Delgato 1988

JUNE1992 /TheAdvocatel47 Do The Guilty Go Free?

Bob Carran

This article was written at the request of prisoners under the jurisdiction of Fed commitments to population56% v. the Kentucky Post. It has yet to be publish eral and State correctional authorities at 18.5%. ed in that paper. Bob Carran has gra year-end 1985 reacheda record 503,601. ciously permitted The Advocateto publish The increase for 1985 brings totalgrowth The final conclusion is inescapable - it. in the prison population since 1977 to America is certainlynot lax aboutimpris more than 203,000 inmates-an increase oning Americans, and has been consis When I was invited to participate in the of 68% in the 8 year period. Since 1980, tently doing so at ante that far exceeds Kentucky Post’s discussion of this topic, the number of sentenced inmates per its population increase, and despite crime I was initially struck by what I considered 100,000 residents has risen by nearly rate decreases. to be another example - of the media’s 45%, from 139 to 201 a new record obsessive attention to crime and the high.The result of this tremendous in Why then, is there the misperception by criminal. Why, I asked, wasn’t the title crease in Americans sent to prison has the public that America isn’t doing "Are We Losing Our Freedoms?",or"Is been the stretching of our prison and jail enough to imprison people, and what is Our Gigantic Prison Population Neces systems to the point of bursting at the this misperception costing us? sary?" However, I am realistic and I seams. At the end of 1985, few states had know that putting people in prison sells any reserve prison capacity. Only 9 states America has passed through a period newspapers, and politicians who publicly were operating below 95% of their high where its population contained an unusu call for putting more people in prisons get est capacity, and 3 states exceeded their ally high percent of people in the high elected almost a perpetual food chain, highest capacity by more thai 50%. crime rate age group. During this period one feeding upon the other. Overall, the Justice Department reports the crime rate went upas it must, the that state prisons are now estimated to be population reacted to the crime rate in- The question, as I perceive it, is does operating at approximately 105% oftheir crease, and now, years laterand well after America have a disproportionately high highest reported capacities. All of this the problem has materially passed, gov percentage of criminals running the overcrowding is occurring despite the ernment and the courts are responding. streets? fact that since 1978 state prison systems have added approximately 165,000 beds, Studies dating back as far as 1842-1844 Since the "Guilty Free"do notwear scar producing an increase in capacit’ of in England and Wales, and consistently let letters’G.F." around their necks,we nearly two-thirds over the 7 year period. through the present in the United States, can’t really deal in a specific, concrete have always shown that rates of crime manner with identifying their numbers. While the above facts show that America rise during the teenage years, then de What we can do, however, is review the is definitely doing a bang-up job of put cline after reaching a peak at about 18 to statistics and studies of reported crime, ting a high percentage of its citizens in 20. The shape or form of the distribu apprehension, and incarceration for prison, in and out of themselves these tio Wage curve in crime has remained vir America and other Western democracies. facts don’t answer the questions raised by tually unchanged for about 150 years. the Posts topic. One need merely assert Therefore, during the l970s the United The United States Department of Justice, that "Of course we have a tremendous States was going to have an increase in in a series of Special Reports released percent of our people in prison and the the rate of crime no matter what we since 1986, reported that the United percent is steadily rising. We have an didshort of starting a major war-the States has consistently had a higher pro unlawful populace that is growing in two longest and deepest drops jp the portion of its population incarcerated for creasing unlawful." However, this is not prison population increase occurred dur criminal offenses than the other Western the case. ing World War 11 and Vietnam, when a democracies. Other studies have shown significant proportion of our young that two countries of the industrialized The Federal Bureau of Investigation Uni population was sent out of the country. world have a higher percentage of their form Crime Reports for the United States population in prison-Russia and South disclose that the number of homicide, Now that ourpopulation is growing older Africa-and only one country has a rape, robbery, assault and burglary of and the disproportionate number of teen higher percentage of its population on fenses reported to the police decreased agers has grown into the disproportionate deathrow-South Africa. significantly from 1980 through 1984. number of Yuppies, Guppies and Uppies The Uniform Crime Reports of the Com of the mid-1980s, we are seeing exactly The United States Department of Justice monwealth of Kentucky also show a sig what we should expect-a decrease in the also reports that the average annual nificant decrease in the total number of rate of crime. But all the apparatus pre growth rate for the prison population dur reported crimes for the same period. pared in the ‘lOs to increase imprison ing 1925-85 was 2.8% while the residen Overall, between 1980 and 1984, com ment is now finally in place. So what tial population of the United States grew mitments to prison relative to crime in happens? We put ourselves in the corn at a rate of only 1.2%. The number of creased more than 2 1/2 times as fast as pariy of Russia and South Africa.

JUNE 1992/The Advocate 148 -

Not only is America challenging all other countries for supremacy in imprison- merit, but it is also experiencing an ero sion of the rights of its free citizens. As long as the populace reacts, politicians will jump on the band wagon. The result has been a judiciary more eager to incar cerate than ever before, and a political body more eager to pass laws and ap point"hanging judges" than ever before. The floodgates wilt open soon, and when they do we will quickly reach the 19405 pace of execufions-averaging one every other day. We may even be able to pass South Africa. Ironically, another spinoff of America’s eagerness is a Supreme Courtthat can accept in the imposition of the death penalty a discrepancy that cor relates with race, and can accept such judicially approved racism by merely ac cepting apparentdisparities in sentencing are an inevitable part of our criminal jus tice system. Not surprisingly, this is the same court that has eaten away vast hunks of our Bill ofRights.

But the good news is the politicians have aplatformissueandthemediahasaquick sale. Just yesterday another candidate called for the creation of a task force to run the criminal out of town-and it ceived front page headlines. However, nothing was said in the article about ad dressing the problems teenagersface and lead them to crime, nor about our mental health treatment, nor about the truly in- credible number of Saturday Night Spe cials available in our town. And no one fromthe media asked. ROBERT W. CARRAN Public Defender Administrator Covington,KY Should the government allow But what happens when 606581-3346 people to enjoy all freedoms, even if Americans push these freedoms to it means Infringing on other their limits and beyond? Is it Bob is the public defender administrator Constitutional rights? How do we possible to reach a compromise? for Kenton, Boone and Gal/atm counties, decide which freedoms take These are tough questions for and a member of the Public Advocacy priority? tough times, but the decisions we will children’s Commission. Heis also in private practice The Bill of Rights guarantees make today affect our in Covington, and a member of the Ken certain freedoms and limits others. lives tomorrow. tucky Criminal Defense Our forefathers created the Bill Tough questions require the Association of secure happiness and right Information. You can Lawyers. In 1990 Smith was awarded the of Rights to Co freedom for all Americans. We enjoy find It In the Hill of Rights. prestigioitsNLADA awardfor his two dec these freedoms and rights every day. ades of dedication to equal justice. The Bill of Rights. Do you know enough?

To learn more write: The Constitution 806 17th St. NW. Washtngton. DC 20006 Phone 202 LJSA-1767

Tire opinions expressed herein do not necc,ssrilvrcilecr the views of the sponsoring orgnn,xarrons

John Payne & JeffPendleton, Western Kentucky University

JUNE 1992/The Advocate 149 HQW CAN YOU DEFEND THOSE CROQKS?

On television and in the movies, we criminal defense lawyers are not infre quently portrayed as brave and romantic figures, swashbuckling heroes in three- button blue.’ Then we turn off the tube and fmd that, in real life, we are more often viewed as moral degenerates. It is bad enough that whenever we are introduced to persons of intelligence and refinement, the very first question they ask us is "How can you defend those crooks?" Their clear implication is that anyone who devotes talents and energies to helping known criminals must have sold his soul to the devil. But when the same kind of sentiments are openly voiced by public prosecutors, legislators and judges, the defense of the damned becomes not onl’ unpopular but down right dangerous. The prevailing attitude toward criminal defense counsel was recently expressed by a federal prosecutor in the Southern District of New York in the course of his rebuttal summation. The proper response to defense counsel’s arguments, he urged the jury, was to ‘lorget all that, because while some people, ladies and gentlemen, go out and investigate drug dealers and prosecute drug dealers and try to seethem brought to justice, there are others who defend them, try to et them off, perhaps even for high fees.’ How he implied I, could such a professional prostitute be "Ofl WffH41fl4WAIS worthy of belief? While these and similar remarks by the sel never "really" knows whether his cli to counsel with at last as muth certainty virtuous young prosecitor ultimately led ent is guilty or innocent, both in that his as, say, the names of one’s parents or the to reversal on appeal, views not unlike actual knowledge is imperfect and in that legitimacyof one’s birth. And to say that his have been publicly urged at various it is legally irrelevant because only the such knowledge is legally irrelevant is to times by prominent lawyers raning from jury can determine guilt. Classically, beg the very question in issue: whether Warren Burger to Ralph Nader. Serious this was the arument advanced by counsel possessed of such knowledge is thinkers from Jeremy Benthamto Jerome Samuel Joimson, and more recently, it precluded from advocating to the jury his Frank have argued that any systemunder was the position reportedly taken by Ed client’s innocence. which an attorney is required to advocate ward Bennett Williams.8 Whatever the the innocence of a person he knows is case with Johnson, however, one sus For those who would meet the challenge guilty is both morg.lly repugnant and so pects that Williams, as an experienced head-on, however, the role of defense cially destructive. trial lawyer, knew better. Anyone who counsel in defending the guilty can be has practiced in this field for any length amply justified, whether the goal be truth, Rather than directlyrespond to such chal of time has encountered more than a few justice, or the vindication of public mor lenges, some have sought to avoid the clients whose guilt, directly confided by als. issue by maintaining that a defense coun client to lawyer and corroborated by the lawyer’s own investigation, is "known"

JUNE 1992 /TheAdvocate 150 --

CONSIDER THE believes or knows is guilty, the adver decent standards. "It aims at keeping ALTERNATIVE sary system offers the reward of preserv sound arid wholesome the procedures by ing the trulyinnocent from prejudgment, which society visits the condemna Thismay seem most surprising when the and effective conviction, at the hands of tion."12 As every defense counsel knows, goal is promoting the truth. How can the lawyer. most of what occurs in the criminal jus making a guilty man seem innocent ever tice system occurs out-of-sight of any advance the Iruth? The answer, in part, is Again, it is not, as Edward Bennett Wil court: at the point of arrest, at the police to consider the alternative. Those sys liams would have it, that defense counsel station, in the prosecutor’s office, in the temsin which a lawyer is called upon to never truly knows whether the client is grand jury. In every place, the accused is reveal, rather than conceal his client’s guilty. It is, rather, that a system that effectively presumed guilty, and the gov guilt have usually degenerated into sys inhibits the defense of such a client will ernment’s word is law. Only the threat tems that utterly subvert the truth. Thus, inevitably inhibit the defense of clients that what happens in these places will it is a tenet of most communist legal the lawyer simply believes or presumes eventually be the subject of vigorous systems that in the words of one such are guilty; whereas a system that requires scrutiny by defense counsel prevents criminal code "The defense must assist the lawyer to vigorously defend the client these points along the process from d the prosecution to find the objective truth regardless of the lawyer’s knowledge or generating into star chambers or worse. in a case," including ridiculing a client’s beliefs is far better calculated to develop No wonder that so many of our constitu defenses where they appear to defense the truth for those who are wrongly ac tional liberties derive from criminal counsel to be untruthful and educating cused. Given the practical tendency of cases, or that criminal defense counsel so the guilty %ient to his need to accept every system of criminal justice to as often, and rightly, lay claim to be the first punishment. The next step turns out to sume the guilt of the accused, the impor line ofdefense in the preservation offree be public confession and Gulag. tance of fostering such a tough-minded dom. If the prosecutor presumes to speak defense ethic cannot be overestimated if forthe social order, then it is the defense Put more broadly, the defense counsel truth is our goal. counsel who speaks for the liberty of the who must conform his defense to what he lone individual and who dares to assert believes to be the objective truthbecomes A SYSTEM FOR THE on his behalf that "Though I be evil in defacto an inquisitor, rather than an ad INNOCENT ONLY? carnate, if you trample my rights you will vocate. But experience suggests that the inevitably lose your own." inquisitorial cast-of-mind tends to pre Our broader goal, however, is justice; and judge: to categorize too swiftly and as this may mean more than just ascertain To defend the guilty therefore serves the sume too readily, "toreach a conclusion ing the truth. The medieval rack may causes oftruth, justice and liberty. But for at an early stage and to adhere to that have been a successful device for elicit all these highfalutin’ pretensions, does it conclusion in the face of conçljcting con ing the truth, butno one nowsuggests that still not fly in the face of conventional siderations laterdeveloped." its use was just. Conversely, would we morality? Is there not something down today regard as just a system that pro right wicked in trying to get some known These all-too-human tendencies "to vides counsel forthe innocent only? Yet, villain off the hook? judge tooswiftly in terms of the miliar" if one is forbidden to defend an accused can only be counteracted if counsel is of whose guilt one is certain, a large Such a question presupposes a narrow honor-bound to ferret out and advocate number of criminal defendants will be and artificial view of right and wrong. every fact and argument that can be deprived of counsel altogether. Even the simplest criminal case involves turned to the client’s benefit, regardless questions of principle and policy with of whether they accord with the lawyer’s Of course, one could narrow the group by broader implications than simply achiev personal beliefs about the client’s uhf- encouraging guilty defendants never to ing an equitable result in the case at hand, mate guilt. " confess or even to hint at their guilt to important though that may be. Take these their attorneys, on pain of losing their familiar examples: This is the genius of the adversarysystem lawyers or at least their effective advo at work. Such a system is premised on cacy. The rule of such a system effec The state says the defendant murdered the belief that the best way to arrive at the tively the one advocated by Bentham is: her husband. The defendant says shedid truth is to hear both sides of the story, lie to your lawyer orlose him. Bentham’s so only after years of physical abuse at subject each proponent’sassertions to the belief that such a system is calculated to his hands. What weight should we accord vigorous criticism of the opponent, and promote the truth seems dubious on its to such a defense, and what kinds offacts then have neutral arbiters decide which face. But in any event, can such a system are relevant? Is it "moral" to convict her assertions make sense. But if such a sys remotely claim to be just, when it condi of murder? tem isto work at all, it requires that those tions one’s right to a voice and a cham who are called upon to advocate one pion on the denial ofcandor? One would The state says the defendant confessed to side’s story and criticize the other’s not suppose that citizens both guilty and in therape, and offers little other proof. The be diverted from this essential role by nocent would have considerably more defense says that the confession was co their own beliefs or conclusions, how confidence in a system that permits them erced or, if not coerced in this case, was ever strongly held. to confide their innermost secrets to their obtained by methods calculated to lead to counsel without having to fear that such coercion in other cases, If the former, is On this analysis, an advocate’s personal confidences will be turned against them. it "moral" to convict the defendant? If the beliefs regarding the ultimate issues in a latter, should the same consequences case are not merely, as Dr. Johnson flow as if the former? would have it, irrelevant to the operation Furthermore, there is more involved here of the adversary system; rather, if al than individual peace of mind and confi The state says there was ample probable lowed to infect a lawyer’s advocacy, they dence in the fairness of the system, im cause to return the indidtment. The de are likely to undermine the truth-ferreting portant though those be. Vigorous advo fense says the indictment was returned by effectiveness of the system itself. Thus, cacy on behalf of every defendant, guilty a grand jury selected throughracially dis for the price of occasionally imposing on or innocent, is also the surest guarantee criminatory methods. What does this an advocate the difficult role of arguing that due process will be preserved and mean? How is it determined? Should it the innocence of someone the advocate that the government will hold to fair and be the subject Of proof in’a criminar ôãe

JUNE 1992 ITheAdvocate 151 bias.

itself? What remedy follows in the crimi Jury be unanimous tend to substantially 3Quoted in US. v. Friedman, Dkt. No. nal case if it is true? Is it "moral" to try mitigate the judicial 90-21010 2d. Cir., July 17, 1990, slip. the defendant on such an indictment? op. at 5643. There is, however, a second impediment PRINCIPLES & POLICIES not so readily discarded. The proper 4 Id. working of the adversary system posits, Such examples are but simple illustra ifnot equality of talent amongadvocates, See Freedman, Lcrssyer’s Ethics in An tions of the clashes of moral principles at least a minimnal level of competence Adversary System 1975 at VIII and 14- and social policies that commonly arise and resources below which the advocate 15 re Burger and at 10 re Nader. Bur in criminal lawsuits. They arise for two never falls. But the truth is that there are ger sought the disbannent of Reedman reasons: not a few hacks practicing criminal law for suggesting that a lawyer might be and, even more common, a great many ethically obliged to remain silent while First, they arise because, contrary to competent lawyers whose resources are his client committed perjury. Nader popular wisdom, neither justice nor mo notremotely adequate to mount a serious picketed Wilmer, Cutler & Pickering to rality is a fixed and known quantity in defense, either because their clients can protest its negotiating a favorable consent most cases. Rather, the ascertainment of not afford such a defense or because in decree on behalfof General Motors. what is wise and right requires careful the case of indigents the state is unwill weighing and balancing of a multitude of ing to pay for such a defense. 6Bentham, in Chapter 5 of his Rationale competing values and practices, a few Of Judicial Evidence reprinted in his which may be obvious and many of PLEA BARGAIMNG Works at 472 if. goes so far as to argue which may only become obvious upon that a lawyer to whom his clienthas con careful reflection. Thus, as numerous studies have sug fessed guilt ought to testify against him, gested, one of the major reasons a large Frank, while not going so far, argues in Second, the main reason why the less- number of indigent defendants plead ChapterV of Courts on Trial 1949 that than-obvious considerations are brought guilty is because they quickly ascertain to continue to urge the innocence of such to the surface is because the adversary that their appointed counsel cannot hope a client is "the equivalent of throwing system encourages counsel to explore to mount a meaningful defense on their pepper in the eyes of a surgeon when he every defense in law, fact and policy that behalf, and in the absence of such a de is performing an operation." id. at 85. may be available to the client. Were the fense they face far greater imprisonment system not so designed, the complexity, if found guilty after a trial than if the 2 J. Boswell’s Life of Samuel Johnson difficulty, and moral ambiguity of these enter into an appropriate plea bargain.’ G.B. Hilled. 1887. situations would largely be lost to the Plea bargaining in such circumstances is arbiter, just as they are lost to most people the total antithesis of what the adversary 8Freedman, supra note 5,atSl. confronted with such situations outside system is all about, and it may be infened, the legal system. not ifrequently results in gross injus 91d.at2. tice.1 Thus, until far more resources are The genius of the adversarysystem, then, poured into the public defender lystem, ‘°Fuller The Adversary System, in Ber lies in its recognition that life is complex, the great merits of the adversary system man ed., Talks On American Law and that incentives should be provided to in promoting truth, justice, liberty and 1961, at 39. bring this complexity to the surface, so morality in criminal cases will be lost to that a fuller and more far-reachingjustice a greatmany indigent defendants and, by 11 hi. can be achieved. Nowhere are those in extrapolation, to society as a whole. centives greater than in criminal cases. ‘2idat35 In such cases, therefore, the greatest ad JED S. RAKOFF vocacy often takes the form of demon One New York Plaza ‘3See generally. Mitchell, The Ethics Of strating that "conventional" morality 212 820-8000 The Criminal Defense Attorney-New must be tempered by more fundamental Fax # 747-1526 Answers To Old Questions, 32 Stan. L. principles expressive of a deeper and Rev. 293 1980. more genuine morality. JedRakoffis apartner intheNew YorkCity firm of Fried, Fran/c, Harris, Shriver & generally, Landsman, The Adver While it would be pleasant to end this Jacobson. Specializing in criminaldefense sary System 1984. article on such an affinnative note, can and civil RICO cases, he is the co-author dor compels the addition that there are of Business Crime 1981 and RICCO ‘5Mitchell,supra note 13, at 322-23. See certain existing impediments to the effec 1990 as well as over sixty published arti also Amsterdam, The Supreme Court tive operation of the adversary system in cles. He currently serves as Lecturer-in- And The Rights OfSuspects in Criminal criminal cases. To begin with, the system Law at Columbia Law School. Cases, 45 N.Y.U. L. Rev. 785, 792 posits that, while counsel must be entirely 1970. partial to the clients, judge and jury must Reprintedfrom the August 1991 issue of be utterly objective ad unbiased in de Champion. A publication of the National ciding between them. When it comes to Association ofCriminal Defense Lawyers, criminal cases, however, too many with permission and by permission of the " Mitchell, supra, note 13, at 319-20. judges evidence a blatant and con5tinuing author. bias in favor of the prosecution.1 While 18 there are many reasons for this, probably NOTES the most commonone is that many judges believe that they have "seen it all before" Cf. Lawyers’s Role in TV’s ‘Criminal and thus are unabl1jo treat each criminal Justice,’ N.Y.L.J., Sept. 5, 1990, p.1. defendant afresh. Fortunately, juries are not nearly so jaded, and the twin 2 See Morvillo, Current Risks in Being requirements that criminal cases be de A Criminal Lawyer, N.Y.U., April 3, cided by a jury of twelve and that such a 1990, p.3.

JUNE 1992 IThe Advocate 152 ,r. ..--.- . ._.__..--. --

Anatomy of a Criminal Lawyer

The following article, "Anatomy of a are touched by this described tension, one jurors have far more common sense than Criminal Lawyer," is adapted from a way or the other. When the prosecutor do the lawyers. We worry too much about speech given on December], 1982, to’ suggests the effect of a guilty verdict on this common sense being influenced by then Dean ofNCCD , Emmett Colvin, and the crime problem, he preys upon this inaccuracies portrayed in television tri itis reprinted here with permission ofthe tension - he, in fact, knows that regardless als. National College for CrUninal Defense of the verdict that is returned, he will have in Houston,Texas, from their publica more cases to try next year. The criminal Many criminal defense lawyers have tion CriminalDefense 10, no.]. lawyer has an acute awareness of this fallen into the occupational habit of tension. He knows that it has caused the blaming the prosecutors and the courts [Tjhe criminal lawyer is, by and large, an judge to run for reelection on a "fight the forattempting to destroy America’s great artist. For every artist, there must be a crime problem" theme, even though it is system of justice. Nonsense! Lawyers canvas. Our canvas is exceedingly broad, not his fight at all because he is suppos represent one citizen at a time, and but we must not only appreciate its ex edly a referee. He may, in fact, turn out whether we like it or not, the criminal panse, we must thoroughly understand its to be a good referee, but at election time lawyer is in show business. His works texture. The texture of our canvas, the he must scrub with lye soap and give the call for the fmest form of acting. The few Bill of Rights, is tension - a tension be outward appearance of an Eagle Scout. superb trial lawyers win because the tween the moflty and the minority. To audience believes the proof showed that engage in our art, one must thoroughly While in law school we learn of the opin the defendant was not guilty. The true art recognize this tension. ions of the higher courts and even cherish of trial work is in achieving this audience some of them, our warrior knows that the reaction. Mere rhetoric will not suffice; We commonly hear expressions relating number of reversals is insignificant, and cases are not won o’ rhetoric alone. The to the "rights" of the majority without he learns to distrust the expounders of the trial expert is a master of nuances; the [having] any real appreciation- [of the law. His trust lies in the jury box. force of understatement, the whisper to a factj that a majorityhas no rights, nor was jury held in rapt attention, the dignity of it contemplated by our forefathers that it Time and time again, beginning the jury apparent truth and the appearance ofan should. Those in power need no rights. selection, lawyers generally prosecutors, absolutely honest defense, to name but a This was one of the expressed fears of emphasize that actual jury trials bear no few. Alexander Hamilton when the Bill of resemblance to television trials; that there Rights was being considered. Hamilton’s is no Perry Mason. Jurors will mechani Skill is assumed. While the civil trial posture was that the Bill ofRights was not cally respond that they can put aside pre lawyer may fumble through the rules of only unnecessary, but dangerous, for it conceived notions about trials that evidence, the criminal trial lawyer must would contain various exceptions to they’ve acquired from television... It is execute [his case] with the precision of powers that were granted in the first in naive to assume that a nation red-eyed an experienced pianist on the keyboard. stance. Why, he stated, should it be said from watching television and that merely More important than the expert’s particu that the liberty of the press shall nOt be scans the printed [page] can shuck TV- lar skills, however, is the lawyer’s belief restrained when no power in the pro formed impressions for the duration of a in the case and in the client. One may call posed Constitution is given by which trial. Although lawyers should recognize this the "glue" without which a case will restrictions may be imposed. The danger, that we are not the prime factor in a win nothold together. A lawyerneed not have he said, is this: "It should furnish to men or loss, it is time that we do realize that an absolute belief in his client’s guilt or disposed to usurp, a plausible pretense jurors are entitled to better than what innocence; in fact, very often a lawyer’s for claimning that power." Perhaps an un they receive. While we know that success strivings aredirectednot toward the issue derstanding of Mr. Justice Black’s in a trial is grounded largely upon lengthy of guilt or innocence, but toward winning "shocking" absolute theory can be preparation before trial, the jury does not a reasonable punishment. Lawyers repre grasped by a reading of the "84th Feder see this. sent human beings and must recognize alist Paper," written in approximately that the sorriest person in the world has l788,These concepts are reflectedin the What jurors do see and experience is one some good qualities, or at least he must agonizing judging process of those dedi interruption after another and long de understand how he came to be the person cated to achieve this matter of justice. lays. If [a trial] were a theatrical perfomi he is. Without this understanding, a case Some, unfortunately, because oftimidity, ance, their price of admission [would] will lack that crucial adhesive: a lawyer ineptness or other reasons avoid this ar rightly be refunded. Far too often, just as witha clear and unabiding belief in all his duous process, applying fictional rules the trial catches the jury’s attention, they words and actions. upon rules, like the Sarthedrin of old, are thrown into the hallway or the juzy until the sense ofjusticeis lost in the rule. room while lawyers haggle over matters The form of acting that he is involved in about which they can only speculate. is the Stanislavsky method of acting, This canvas sets the stage for our per Don’ç think they don’t speculate! In fact, where one throws oneself into the part he formance as an advocate in the arena. All I have concluded that, on may occasions, is playing. When you are portraying a

JUNE 1992 IThe Advocate 153 tree, you are in fact a tree. The lawyer pared, notso knowledgeable and, indeed, jury what it wants, the lawyer will look who employs this method will not me notso likable. to the real world for tools to capture the chanically try cases the same way each jury’s attention. While the jurors have to dine. We know the more likable the defendant, listen, their minds can wander. And how the more the jury is influenced to acquit. do you capture their attention? You do it Before his death, "Uncle" Erie Stanley Thus, we prepare him - we dress him up. with never-ending imagination. As you Gardner told me how distinctively differ On the other hand, the more likeable the look around in this world you always ent were the "greats" [who share] a same complaining witness, the more, the ten look with one thought in mind: How can ness. That sameness is the "glue’ - that dency to convict. In an artful manner, we I use that before a jury? The possibilities belief - that total devotion to a human must destroy or change this image. are unlimited. Do you plan to use an being in a courtroom. aerial photograph at trial? Why have it We know that in modern times reliance shot from a piper club, when you can In the courtroom the criminal lawyer on ethnic stereotypes and traits is far too readily order a satellite or a U2 photo flows on a stream of imagination and an simplistic, risky and generally wrong. graph at a reasonable cost? The contra understanding of human emotion. We have learned that generally women dictory statement at a prior trial or [a] are not . . . all [so] compassionate [as hearing manuscript can be blown up to This artist does not paint by the numbers. tradition would have us believe]. the size of the wall with an official look He may use a graphologist to analyze of the page and line number.. . all for the the prospective jurors’ handwriting on We have perceived that those whose jobs eye to see and the ear to hear. the jury cams, as weii as the prosecutor’s demand precision, such as engineers, ma and ‘the judge’s where possible. Some "inisLs programmers, bankers and a Racehorse Haynes once suggested that insight, some edge is what he is seeking. countants, tiny first lean to conviction lawyers might affect a "Huntley-Brink On one occasion, the night before jury but are highly likely to change their ley" method in courtroom argument. Do selection, my graphologist in reviewing minds after hearing other evidence. Then you remember the Huntley-Brinkley cards, told me that one on the panel was they seem to demand even more stringent newscast? Suppose after making a point "gay." In an indecentexposure case, that levels of proof by the prosecution. in argument a lawyer turns to his co is significant! . . . Why the prosecutor counsel and asks, "What do you think?" tookhim,! don’t know. He was, I’m sure, Through experience our criminal lawyer The co-counsel could then stand up and of great help in the favorable verdict. has learned that generally nurses, factory make his or her contribution. Do you workers, professors, clerks, social work assume that the trial judge would not [He] may hire the psychologist Cathy ers and truckers do notlean either to guilt permit this? How do you know until you Bennett of Houston to analyze the jurors or innocence, at least initially. try? The judge certainly has the discre for [him]. Yet, these arebut tools that aid tion. Presenting an argument in this way in the lawyer’s decision. Through his We know that if there is one common could create a "think " atmosphere, ability to continually observe humans [image] of a good defense juror, it is [that increasing the chance that you will think and society as a whole, he learns for of] one whohas "seen it all," who reads of that brilliant argument before leaving example that we live in a frustrated soci books, . . - watches television very little, the courtroom. As performing artists we ety; a society that knows it has little con comes from a large family, manies a must appreciate afundamental principle trol overits destiny, its taxes, it’s govern liberal and thus had the breadth of expe and realize that all art, one iwzy or the ment. All above ignore our voices, As rience to allow a tolerance of deviation. other, speaksthe truth. government grows and problems in crease, so increases the frustration. Thus, Most of all, however, we must be acutely In his bag of imagination, there is, of when the jurors hear the United States aware that all the many variables within course, humor. Humor in its finest form Attorney say he represents the United the panel must be methodically and rflects an understanding of human in States, they may be merely reminded of quickly calculated for selection. Having ture. When relevant, nothing can be as the source of their frustration. Fortu accomplished this, in large measure, the effective in communicating with your nately or unfortunately, we have the plat criminal lawyer is playing the game on jury. In one case, few of the jurors had form for at least a more impartial jury. his home field. He has his jury. prior jury service. I concluded my argu ment in this manner: "You will note I We scan the panel for possible foremen. Now, with his jury, the lawyer’s flow of have not attempted to dictate your ver We know the prosecutor is looking for evidence through prior preparation will dict. I have not done so because I would the cold-blooded authoritarian as a fore excite the jury. There will be no unneces be trespassing on your intelligence. III man; rarely does the jury make such a sary delays, at least on his part. Presenta have helped you in analyzing the evi selection. And whenit does, there is often tion of evidence will be planned to peak dence, fme - that is what I should have a counteraction that leads to at least a at just the right moment in the course of done. From that point, however, your hung jury. We learnfrom ourexperiences the trial. He will not overexamine, and he conclusions are really better than that of Thf$j,chàdrania developed by the Na will not become enamored of the sound the lawyer, because you are not biased.1 tional College for Criminal Defense that of his own voice. He will be honest and do not envy you your task; a decision that the likely foreman is talkative, exception he will be natural. The jury will expect affects aperson’s freedom is, I’m sure,an ally warm, sligjitly above average in in suspense,and he will give them suspense. awesome thing. Not only do you face an. in telligence withgood word usage and less While he cannot arrange for someone in arduous task - on occasion it might be than average in height. Likability is the the audience to jump up and confess, he fact somewhat awkward. At breaks in strong factor. will certainly pace the presentation of your deliberation, you may see me, my. evidence so as to stimulate the jury. Cer client, his friends and loved ones and We know that if the jury thinks a prose tainly if an actress can peddle amaxi-pad, others in the hallway. This will be un cutor is well prepared, persuasive and a lawyer should be able to sell a human avoidable. We are all friendly personS’ likeable, the jurors will tend to convict. being. While the lawyer doesnothave the and there is generally the urge to speak - Since the likability of the prosecutor is booms, lights, sets and grips, he or she notabout the case - but to simply pass tIle’ more significant than the likability have graphs photo time ofday. Actually, there’s nothing too of the does charts, and ob defense lawyer, it is our task to cause the graphs, together with imagination,which wrong about this - but the distant prosecutor to appear not so well pre can provide much more. In giving the server who does not hear our voice and

JUNE1992 ITheAdvocate 154 only sees our lips move might well form a different opinion as to what is actually said. So while it may be awkward, if and when we do see one another, we will understand. Perhaps we might even nod our heads, but don’t move your lips." The purpose of this message with slight ha mor was 1 to give dignity to their opin ion I knew the prosecutor would demand a conclusion of guilt, 2 to show that I understood the trouble that they would face in the jury room which they didand 3 to cement a mutual understanding as to the hallway experience, which they did, in fact experience. I was amused, at one break, when a juror looked at me, smiled slightly, nodded and placed his hand over his lips. Ibegan Iby addressing] the art of criminal advocacy, and in some respects I have simply told you about a way of life. In my practice this is one and the same. Youcan appreciate that when we pause at one time or another and reflect on why we are here involved in a continuing, unique American experience of man’s ability to cope with man. Few in this world are so peculiarly blessed as we are withthe most vital and challenging responsibility in a piece-meal resolution of this grand ex periment. Our involvement encompasses the fullgamut of human emotion, permit ting us to relate to the next person with a greater matmity. The sheer exhilarating thought each morning as we arise that we as individu als, men or women, stand between a citi zen and the awesome power of the Fed eral or state government is an award that is achieved by few.

EMMETT COL YIN Attorney at Law 5206 McKinney Avenue Dallas, Texas 75205 214 528-0515 Heattended St. Louis University and the University ofArkansas. receivinghisLL.B in 1942. Heis one of the country’s leading attorneys in the area of white-collar cri,ne.

JUNE1992 ITheAdvocate 155 REFLECTIONS ON CRIMINAL DEFENSE WORK

John Delgadospoke-at the 1988 DPA Trial system at all. These are our guarantees, Go to the hospitals; visit the prisoners. Practice Institute on the work we do as our rights, our protections, not George For isn’t that what the Constitution does? criminal defense attorneys. Bush’s. I believe we are the true conser It gives us guarantees forthe very least of vators and protectors of the First, Fourth, these, our fellow citizens, and requires I had a law partner once eight or nine Fifth, Sixth, Eighth, and Fourteenth the State to prove beyond every reason years ago that left South Carolina to go Amendments of the Constitution.We are able doubt that exists in the minds of 12 to Europe to practice law. It was really the real law enforcement officers, notjust people their guilt allezed by the state. traumatic for the three of us partners to those colleagues of ours that wear badges And then, when the Constitution gives have to split up because we really loved and service revolvers on their hip. We are these rights to the poor,the powerless, the each other. We fed off each other. I "law enforcement" and those are the least of these. . . it gives then to the rest missedherpersonally and professionally. rights and guarantees we protect. of our citizens. Only when the guilty get The thy after the night she left, I caine to a fair thai do the innocent receivejustice: the office and on my desk was a big In my continuing love affair with consti only when the defenseless are defended manila envelope. Inside was the dog- tutional guarantees, I am reminded that do the innocent receive fairness. eared, beaten up old copy of the Bill of the Constitution has its basis, in some Rights that I had seen my partner keep small part, in Judeo-Christian theology. Ever since Gideon v. Wainwright, it is withher in her briefcase over the time we "For lo, ye whohave done it unto the least our criminal justice system and we must bad workedtogether. She had enclosed a ofmy brethren, ye have done it unto me." begin to look at it in the sense: it is ours, nice little farewell note-."I’m giving you this, I want you to keep it." And she signed it,"Protecting the Constitution I remain...your loyal law partner." I think sometimes when we do criminal defense work that we forget that the Con stitution is our foundation for our work and for our efforts. Those constitutional guarantees that we seek to preserve and protect and defend on behalf of the peo ple we represent are the essence of our work. I sense all too often that I lose this Constitutional focus in the midst of the haranguingand badgering by prosecutors and crowed trial schedules. The way I see this or my interpretation of thesystemandwhichlguessis thereason I am not on the United States Supreme Court, is that I don’t recall the Sixth Amendment giving the governnent any thing. The Sixth Amendment gives those rights, those guarantees, those privileges to the defendants that we serve. The Sixth Amendment gives those protections to the individuals charged with’criminal de fenses. The Sixth Amendment does not give anything to the State. It is my very subjective opinion that the Constitution and the government and state of South Carolina, my personal ju risdiction, are always served and pro tected when an individual is afforded a fair trial. It is not, in my very humble and Reprinted by permission of Mark Taylor, cartoonist for The New Mexico Lawyer. subjective opinion, their criminal justice

JUNE 1992 IThe Advocate 156 -

not theirs. They simply carry outenforc with our clients is not-c difficult now ourselves to call on for support. The corn ing the law. In a superior way we enforce because of the tide of anti-intellectual raderie betweenus in this common strug the law because we are the sn-jet con ism. The flame flickers. Still we must gle can sustain us, give us the strength to structionists and the realprotectors of the nurture the bond of commonality that endure because on Monday morning five Constitution and the 1st, 4th, 5th, 6th, 8th exists in each individual that comes to us or more of us will start a jury trial some and the 14th Amendments. frightened, scared, very possible wrong where. From this lawyer to you all, by in their actions, maybe having done some God, I’ll be thin!’ g about you. I hope But beyond these constitutional guaran horrendous thing, but we love them none you’ll be thinking about me at 11:30 be tees, why do we do-this? We do this theless. We continue to love them no cause I’m going to be alone up there in because we love it, as silly as that may matter what because that is our profes the Supreme Court. seem, to somebody who doesn’t under sional and constitutional obligation, and, stand. We love a fight. We don’t go out for this South Carolina lawyer, it is his We may only have ourselves for our of the way to have them but we love a personal significance. It is the way he selves. That is why, we split up going fight. And more importantly, we love a continues to help define his life. back to wherever we’ve from, we’ll re fair fight. That’s what we’ve been doing tain that comraderie. That trust and love together for the past few days at this It is hard to talk about love and criminal is going to sustain us. And hopefully, Institute: learning to maximize our skills defense work isn’t it? But maybe that is continue to show us that what we do is so we can fight on behalf of our clients. what we do, what we are. Youknow it’s noble, that it has a purpose, and it is the damn lonely to have to love some of these highest calling of our profession. I’m reminded of our national motto,"In poor folks that we hAve to love-that God we trust." Actually that was a com nobody in hell loves, They’ve done I’ll remember you. promise motto because in 1776 Thomas everything in the world and nobody in Jefferson had proposed the motto,"Re hell loves them. They’re looking at us, JOHN DELGADO bellion to tyrants is obedience to God." I they’re looking tous. They’re scared, and Fun & Delgado, think that has more of a fightingspirit to want to know what’s going to happen to 1913 Marion Street, it and that to me epitomizes the spirit of them. And because they personally look Columbus, South Carolina 29201. our work and why we practice criminal to us forhelp and guidance, we find that 803771-8774. defense. higher calling, the noble essence that continues to keep that flame burning. John has been practicing criminal law in What we do in our work is we rebel The Constitution and the Bill of Rights’ South Carolina since 1975. From 1975- against the tyrants that parade injudicial says to us that we will protect them and 1978 he was a Richmond County public robes and against a mob mentality that advocate for them. In the Constitution defender; 1978-1 980 he was Executive Di convicts our clients simply because they we fmd that higher calling, that noble rector of the local Legal Aid office, and are accused. "11 they’re not guilty what essence that continues to keep the flame since 1980 he has practiced criminal law are they doing here?" That is who we burning. But it is so lonely, isn’t it? in the firm of Purr & Delgado, 1913 fight and what we fight and we love Marion Street, Columbus, South Carolina doing that. I don’rknow how many times it hap 29201 ,803771 -8774. pened when I was a public defender: I But more importantly, we love those would go into the jail and meet a new poor, powerless individuals that come to client and shortly thereafter they’d us asking for assistance. We love them say,"Well I don’t want a public defender, because we know that with them we still I want a real lawyer" and I’d think "Oh have a bond. This country has taken a God. I’ve worked three years in that hell BiLL OF RIGHTS definite turn within the past 20 years. The hole of law school for this and you want QUOTES bond we try to create in our relationships a real lawyer? I am a real lawyer !" Isn’t it lonely? Sometimes our clients don’t understand how lonely they make us. "In thirty-eight years of practice, I ALTHOUGH KENTUCKY have never beenas fearful for the sanc DOESN’T RECOGNIZE A Because they’re inarticulate, because tity of individual rights and liberties as SPECIALTY- YOU’RE IN A they’re fearful, because they don’t have I am today. While we applaud and SPECIALTY PRACTICE. those skills, our clients sometimes can’t celebrate the exercise of individual tell us"Thanks I really appreciate what freedoms in other cowttr-ies around the you did,"so they leave us and we world, we are apathetically allowing think"Why did I pour out all this blood the rapid erosion of the rights and lib If lawyers generally are held in low from my soul for this client? They didn’t erties protected by our own federal and regard, it is live that criminal defesne thank us, we didn’t get anything." state Constitutions. The ordinary citi lawyers consistently rank at the bottom zenis no longer safe from unwarranted of thelist of lawyers, spurned even by Nobody really loves us. Except at times governmental intrusion, much less the many of our colleagues in thecivil bar. like this when it comes down to just us. crimiji’al defendant. This should give ...Of the 725,574 actively practicing That’s why I love doing these seminars. every citizen in the United States pause lawyers, it’s estimated that fewer than I get the energy to continue that. fight. to consider the value of individual free 50,000, including public defenders, are Monday at 11:30a.m. in the South Caro dom, and the resolve to not let our criminal defense lawyers. lina Supreme Court I argue fora client. I freedom be further curtailed." will be able to do that better nowbecause Neal R. Sonnett, then President of of the energy, love and respect we have FRANK E. ILADDAP, JR. NA CDL in The Champion, The Presi shared among ourselves here. That is ATTORNEY AT LAW dent’s Page, JanuarylFebraurary what has to enable us to carry on our KENTUCKY HOME LIFE BLDG. 1990. fight. LOUIS VILLE,KY 40202 It is lonely. We got everybody pointing fingers at us and so we may have only

JUNE 1992 /TheAdvoêate 157 r

HE WAS FAITHFUL

When this causes/rail have been committed court, I shall remain counsel for the pris for an acquittal, buthe would have his say to you, shall be happy, indeed, if it shall oner until his death." as a proud lawyer and advocate: appear that my only error has bear. that / have felt too much, thought too intensely, There was no public defender nor any lam not the prisoner’s lawyer. I am, indeed, or acted toofaithfi thy. source of funds to pay for legal irepre a volunteer on his behalf. . .1 am the lawyer sentation. Seward, driven by a fierce for society, for mankind; shocked, beyond William Seward, the power of expression, at the scene I have H. jury closing sense of commitment and principle witnessed here, of trying a maniac as a male which characterized his entire career, in factor... William H. Seward is remembered by vestigated the case, checked into the de even casual students of American history fendant’s background, obtained medical It was late in the day when Seward con as a distinguisked governor, and then testimony, and developed an overwhelm cluded a summation of more than two senator, from New York, the principal ing factual scenario in support of a de hours’ length: founder of the Republican Party, the up fense of insanity. set loser on the third ballot at the 1860 I remember that it is the harvest moon, and RepublicanConvention to Abraham Lin The prisoner was William Freeman. that every hour is precious while you are coln, Secretary of State in Lincoln’s cabi Some years previous, as a bright and detained from your yellow fields. But if you net and, toward the end of his career, the hard-working young man, who had shall. . in the end have discharged your man who almost singlehandedly engi worked as a common laborer, he had duties in the fear of God and in the love of neered the purchase of Alaska, derisively been arrested on the charge of stealing a truth justly and independently, you will have laid up a store of blessed recollection for all called at the time, "Seward’s Folly." horse, tried and convicted, solely upon your future days, imperishable and inex the testimony of another young black haustible. But if we turn the clock back to a cold, who afterward turned out to be himself blustery morning in early March, 1846, the thief. Nevertheless, Freeman served The jury promptly returned a verdict of we are introduced to a less well-known five years in prison. Upon his release guilty, and the following morning the facet of this distinguished American’s from prison, when offered the customary judge sentenced William Freeman to be career - Seward the trial lawyer. The set few dollars to which released inmates hanged. The Supreme Court of New ting was Auburn, New York, a quiet were entitled in those days, he declined. York reversed the conviction- Freeman farming community not that far from "I’ve worked five years for the State, and was never retried. He died in his cell in Syracuse nor far enough south from Lake ain’t going to settle so." chains in August, 1847. Seward survived Ontario to be spared the bone chilling his client by 25 years. dying in his home wind from the Canadian plains and across But it was too late forWilliam Freeman’s in Auburn. A three-word epitaph was that greatlake. JohnVanNest, a respected mind. During his imprisonment, in re inscribed on his tombstone in accordance local farmer, his pregnant wife, his eld sponse tohis endless protestations of in with a request he had made in remarks to erly mother, and a sleeping child were nocence, he had been repeatedly beaten the jury in the Freeman case: viciously attacked and fatally stabbed in and flogged. In one incident,his head was their home without provocation or evi splii open by a board, which left him In due time, gentlemen of the jury. . .my dent motive. forever deaf. At the time of the thai, he remains will rest here in your midst. It is very was unable to utter an intelligible sen possible they will be unhonored, neglected, The assailant was promptly wehend tence. Throughout, he sat with a fixed spurnedl But, perhaps, years hence, when ed, returned to the scene of the crime, grin on his face. the passion and excitement which now agi tate this community shall have passed away, readily confessed, showed notthe slight some wandering stranger, some lone exile, est remorse, freely avowed to the police When William H. Seward addressed the some Indian, some negro, may erect over and all within his hearing that he would jury at length in his closing remarks, he them a humble stone, and thereon.. . "He kill others if he could. Thedefendantwas faced head on the disability that was his was faithful?’ also known in the community as a con in representing a black man charged with victed thief. He also suffered two other a heinous offense against a respected 10- Seward the trial lawyer tells us all we -disabilitiesatthe*Eime-he-was-brought to cal white family, before an all-whi te jury need to know on the subject of the com the Bar of the court - he was deaf and he in the midst of crowds in the courtroom mitment we owe to our clients, our pro was black. calling for revenge: fession, and our system of justice. He was faithful. When he was brought to the courthouse The color of the prisoner’s skin. . .is not to be arraigned on multiple charges of impressed upon the spiritual, immortal mind DAVID S. SHRAGER murder, he barely escaped summary jus which works beneath. In spite of human President, ATLA tice the crowd. The District pride, he is slit! your brother and mine, in by Attorney, form and color acceptedand approved by his shouting in the prisoner’s ear, was unable Father, and yours, and mine; and bears Reprinted by permission from TRIAL to obtain an intelligible response to his equally with us the proudest inheritance of magazine, The Association ofTrial Law inquiries as to whether the accused had our race-theimage of our Maker. Hold him, yers of America. any counsel or was ready for trial. The then, to be a man.. .and make for him all the court inquired, "Will anyone defend this allowance, and deal with him with all the man?" There was a prolonged silence. tenderness, which, under the like circum Finally, William H. Seward, who was in stances, you would expect for yourselves. court that day, arose. "May it please the Seward knew that there was no chance

JUNE 1992 IThe Advocate 158 APTER 13

Ytlinost 1 in 4 Bact men in the age group 20-29 is either iii prison, jail, or probation, or on parolTe on any given Lay.

IAlTarc iMauer ‘The Sentencing Project 1990

JUNE 1992/ The Advocate 159 -4._

Beifin %II, 1989 CzeChoslovakja. /989 BEfORE YOU lAKE YOUR HIGHIS [DR GRANIID CONSIDER thERE ARE DINERS DYING ID HAVE IHEM. All overthe world people risk Americans for more than 200 in a country where voting, everything for a chance to years. So feel lucky you live protesting and just relaxing in havethesamerightstheB’itI/ - the privacy of your home of Rights and its amend- I I II are guaranteed rights. ments have secured for I I * I II * Instead of just dreams.

The Commission on the Bicentennial of The United states Constitution invites you to cebrate The Sill of Rights and BeyDne in 1991. For more nftx-mation write The Coristution. shington. D.C. 20006-3999. No orders after 12/16/91

JUNE 1992/ The Advocate 160 CHANGING THE SYSTEM: RACISM AND CRIMINAL JUSTICE

THE CRIMINAL JUSTICE LEGAL SYSTEM’S FAILURES Those conditions which breed crime include SYSTEM IS RACIST the lack of meaningful employment opportu Unfortunately, the legal profession has not me nities, a failing public education system in our I have been wearing a bow-tie for the past few spondedto theracism andcrisisin thecriminal urban areas, poverty with all its ramifications months and the reaction has been interesting. system. justice Although there are approxi and racism. At first! thought I would be accused of being mately 800,000 lawyers in this country, fewer Today we have one million people locked up a rocket scientist or perhaps alaw school Dean than 1% arein any wayinvolved in defending in jails and in prisons in this country. Over or maybe even confused with Senator Paul Si the indigent and perhaps only 4% or 5% are 50% are African-American males. We have mon. But, that wasn’t the case; instead many concerned with criminal law or criminal jus more black men in our jails and prisons than people in4uired whether I wasdoing an imita tica tion of Minister Louis Farrakham. Was that in our colleges and professional schools. 45% Law school admission requirements and costs racism? Maybe. of African-American children live in poverty. excluded many minorities who may be inter The number one cause of death for black men A few years ago, I appeared in a suburban ested or inclined to deal with the criininaljus between the ages of 15 and 30 is murder. Cook County courtroom. My client was late ticesystem. Ourmajorlaw schools are turning Despite the fact that the average drug abuser, and when the case was called, I stepped up to out those content to write memos but unpre according to our former drug czar William the bench. The judge looked up from his pa pared or uninterested in defending liberty. Bennett, is a white male suburbanite, the "war pers and asked me where was my lawyer; he More and more lawyers are representing a on drugs" is concentrated in the African- assumed that! wasthe defendant. Was that ra smaller percentage of monied clients, while American community, not for prevention and cism? Probably. those persons most in need of legal seryices treatment but for enforcement and incarcera I wrote, as Public Defender, articlesin the Chi aregoing unrepresented. tion. Ourfailed policies aredramatically illus cago Defender, a local newspaper serving the Legal education is not immune from racism. trated by the AIDS epidemic: 52% of the African-American community. In response to The complexion of most law school facilities women with AIDS in the United States are Af my articles, readers wrote in with questions. remain devoid of color. k’s only been in the rican-American; AIDS is now creeping up to I received aletter from amother ofadefendant fairly recent past that the ABA and the New be the fourth and fifth leading cause of death who hadbeen charged with afelony. When she York Bar, admitted African-Americans into for African-American women of child-bear appeared in court she notedthat the judge was their ranks. ing age; 53% of children in this country with white, the clerk, the court reporter, thesheriffs ADS are African-American. were white. Her question: whether the crimi CRIME’S DEBT nal justice system was racist, since the only THE NEW SLAVE CATCHERS black people in the courtroom were either de But the crime problem, as EarlWarren pointed out ago, over fendants or victims. The answer to that ques years is largely the result of an Back to the legal profession: I attended are- tion is yes, thereis no doubt aboutit: the crimi due debt that oursociety has been unwilling to cent conference discussing the American Bar It clear, however, that our society is nalju.stice ysIem is racist. pay. is Association’s proposals for new sentencing willing to pay some debts. For example: the out need In fact, the criminal justice system of the standards and someone pointed the billion dollar bail-out to the savings and loan standards United States looks more and more like that of to reexamine the philosophy of the industry and the six hundred dollars an hour information that the United States South Africa’s every day. As the Sentencing in light of the FDIC is paying private law finns to work Project has pointed out in its latest report, here now leads the entire world in its rate of incar on the saving and loan crisis; the massive re con in the land of the free and the home of the ceration, in light of the fact that prison sources the government was willing to devote struction becoming the number one domes brave, men are incarceratedat arate is to the Persian . Most commentators more of four times the rate of black men in South tic growth industry, that we are spending suggest that we will neverknow the total cost Africa, a tragic and revealing statistic. money on constructing more prisons than new involved in that effort. So we choose to pay homes, that we have one correctional officer some debts and ignore others. for every three inmates versus one teacher for We have ignored the conditions that have cre every thirty students in our urban public C - ated’the problems of crime in this socicty. schools, that the costs of ourcrimb coritrol/iii

JUNE 1992/TheAdvocate 161 carceration binge is now at about 16 billion drove off. One of the young boys happened to drug largelyconfined to the African-American dollars a year. And the response was"weJl, so be my son. I was stunned but he was not out community because it was cheaper, while what? The United States also leads the worid wardly affected because he says he sees in powder cocaine is used more often in the white in violent crimes." Although not often articu stances like this frequently. community. lated, the sentiment among many is that Afri Last fall two teenagers were waiting for a bus OF THE can-Americans commit a disproportionate after a baseball game outside Comisky Park. VICTIMIZATION DEFENDANT share of the crime and therefore deserve to be A police car pulled up, ordered them into the locked-up and incarcerated disproportion car, drove them into one of the more racially I think we must point out that often there are ately. hostile areas of the city, dropped them off two victims in the courtroom; not always, but I’m often asked why there is this dispropor where they were attacked, beaten and chased often the defendant is also a victim and we tionate impact on and in the African-American out ofthe community. I have just learned that must discover, point, and portray the environ community? The answerto me is obvious, par the two police officers alleged to have com mental conditions that contribute to an indi ticularly when you look at the historical, sys mined this act were tried and acquitted at a vidual’s behavior. We must educate the judges tematic and continuing oppression of entire bench trial. about the defendant’s community, the lack of generations and communities. In fact, I often resources, drop out rate in the high schools, wonder why more African-American, particu WHAT DO WE DO? lack of employment opportunities, etc. lady in our urban areas, are not"criminals." So what must we do as lawyers and advocates Remember, it used to be a crime for an Afri PERSONAL WORRIES in thecriminaljustice system,recognizing that can-American to learn to mad or write, acrime at the sentencing stage it’s almost too late? For me, these issues are personal as well as to marry, a crime to move or relocate from one Clearly we must devote some efforts outside professional.! have a sixteen-year-old son and community to another, a crime to speak the the courtroom to educate the public, change I’m concerned that statistically he may have a native language or to keep families intact. priorities and challenge the status quo. Inside better chance of being murdered or incarcer The badges of slavery are not easily disposed the courtroom we must do the same and get ated than being educated and becoming a pro of without lingering effects, especially in light creative; educate the judges, change priorities ductive member of oursociety. I know that my of persistent and continuing racism as evi and, once again, challenge the status quo. eighteen-year-old daughter’s life may be danced by police brutality, segregated hous threatened by the AIDS epidemic and that her ing, inadequate education and lack of mean STRETCH THE LAW TO quality of life may be impacted by the genera ingful employment opportunities. Today, it ACHIEVE JUSTICE tions of young black men incarcerated and on seems as though equal employment opportu row. A few years ago I had a death penalty case death nity for African-American men exists only in where two black men were charged with mur the military and in jails and prisons. Don’t for ADVOCATING FOR THE der of two white businessmen. The case was get inadequate medical carein our urban areas, MARGINALIZEL tried twice and both times the jury was hung. lack of treatment and pm-natal care, hospitals At the third trial the ,rosecutors excused all We have the privilege and theresponsibility of failing all over inner city communities, an in the blacks from the jury venire. This was pre speaking for the voiceless, the restrained, the fant mortalityrate for some African-American Raison and when I argued to thejudge that this confined and the deprived. We must be clear communities exceeding that of most third was unfair, he relied on the state of the law as and forceful. world countries. Given the historical perspec it existed at that time. I argued that the law is tives and the odds, sometimes I marvel at the RANDOLPH M. STONE living, breathing and subject to change; that success rate ofmany African-American fami Professor of Law generations ago it would have been illegal for University of Chicago lies and individuals. Ave. me to even be in the courtroom arguing the 6020 South University Chicago, illinois 60637-2786 Although one out of four young black men is case. He didn’t buy my argument but eventu 312 702-9611 under the control of the criminal justice sys ally the case was reversed. Randolph N. Stone, former Cook County tem, either on parole, in jail or prison, or on Professor j The point is we must stretch the limits of the Public Defender, now Clinical probation, that means that somehow three out Law andDirector oftire Edwin F. MandelAid law and make it change to provide justice for Clinic at the University of Chicago. Origi of four are managing to escape the dragnet, the on our people. naVy presented attheNational Conference new slave catchers. But it’s not easy. Sentencing Advocacy in Washington, D.C., A good example is the Minnesota judge who April 19, 1991. He will present at the KBA About a year ago, two young boys in a mid- Annual Convention in Lexington on June 6, declared the narcotics law in Minnesota un in die-class community in Chicago were on their 1992 on Racism and sexism, and fitnding constitutional for the disparate effect they had the criminal justice system. way to the barber shop one Saturday morning. on African-Americanin that the penalties for Cornerstone Summer, Suddenly a police car pulled up, called them Reprinted from NLADA, those dealing crack were far more harsh than 1991 by permission. over, slammed them against the car, verbally those dealing powder cocaine. She recognized abused them, searched them, went through in a courageous decision that "crack" was a their clothes and wallets and, finding notlng,

JUNE 1992/The Advocate 162 REFORMING A DISCRIMINATORY CRIMINAL JUSTICE SYSTEM

Maximum Security, Kentucky State Penitentiary. Eddyville, Kentucky

The statistics have the feel of a history *The United States incarcerates black creased by 200 percent, hile the rate for book, describing a shameful, unenlight males a rate four times that of South whites declined slightly. enedtime: Africa. ‘The race of the victim counts too: In *One in four young black men in Amer *Blacks make up 12 percent of the drug Dallas, the rape of a white woman results ica is imprisoned, on parole or otherwise users in the country,3 but account for 44 in an average sentence of 10 years, while under the control of the criminal justice percent of all drug possession arrests.4 the rape of a Hispanic gets years, and system- more than are in college. For the rape of a black gets two. Nationally, whites, the figure is one in sixteen.1 9’he disparity in drug cases is rapidly murderers with white victims are up to worsening Between-1984 and 1989,-the 4.3 times more likely to be sentenced p rate of drug arrests for black youth in- death than murders with Nack victims.

JUNE 1992 ITheAdvocate 1.63 * *Sentences are often longer for black And discrimination on the basis ofrace is S. Equal availability of nonincarcera offenders: Nationally, black inmates only part of the problem. Look under any five sanctions to indigent and non-indi serve aknger percentage of their prison rock in the criminaltsffbe¾tem and -gent defendants. Non-indigent defen terms before being re’eased on parole you can find discrimination based on in dants can often, in effect, buy their way thandowhitesinmates. InDallasblacks digence, mental impairment, gender or out of prison time through an array of serve an average of 2.3 years longer in age. valid sentencing alternatives, including prison than whites for aggravated assault, fmes, restitution and enrollment in drug and 13 years longer- 140 percent long9 It is time for a serious legislative re treatment or other rehabilitative pro than for whites-for attempted murder. sponse-and not apiecemental one. Be grams. Sentencing specialists to help de In California, a study found that whites cause the discrimination is comprehen sign effective, individualized, alternative get better plea bargains than Hispanics or sive and systemic, so must the solution sentences are commonly unavailable to blacks for similar offenses, and that be. indigent defendants. Home detention, whites get more lenientsentences and go generally requiring a fixed address, a to prison less often. In New York, a state It is time fora Comprehensive Anti-Dis telephone, and a history of stable em commission found that for misdemeanor crimination in Criminal Justice Act. ployment, usually excludes low income offenses that would land a black in jail, a defendants. white is more likely to be fined. It may seem unrealistic to imagine one bill making much of a dent in the problem Treatment and other rehabilitative pro "This is scandalous," says the Sacra so large and deep-rooted. But like the grams should be publicly funded and mento Disthct Attorney. The Superior law-and-order conservatives in Congress available to all defendants regardless of Court Presiding Judge pronounces the who are always dreaming of wiping out ability to pay. Alternative sentencing situation "at least as serious as the J1q3 clime with a single, sweeping, Be-Care planning services should be provided in Crow conduct was 30 or 40 years ago." ful-Not-To-Drop-It-On-Your-Foot everypublic defender office, and funding crime bill, we must start to dream too. should be authorized for sentencing spe And the situation is no better at the fed What follows is a blueprint for a begin cialists to assist appointed cousel. Where eral level. "Sentencing reform"- both ning of that dream. indigence would otherwise disqualify a the guideline sentencing system and defendant from sanctions such as home mandatory minimums-has simply 1. Race discrimination in capital sen-. detention, fines or restitution, courts driven arbitrariness and discrimination tencing. A society wtiich tolerates racial should have flexibilty to tailor other non called "a massive, though unintended, discrimination in the imposition of the incarcerative sentences which meet the transfer of discretion and au1hority from death penalty makes discrimination not purposes of sentencing while ensuring the court to the prosecutor." 1 just thinkable, but inevitable, whenever proportionality in the availability of non anSi lesser individual interest is at stake. incarcerative sanctions to indigent and Drug offenders account for 80 percent of A bill which passed the U.S. House of non-indigent defendants convicted of the vast increase in the federal prison Representatives in 1990, the Racial Jus comparable offenses. population in recent years, and 65 percent tice Act, would permit a challenge to a of those sentenced in dr1i[disthbution federal or state death sentence which fur 6. Discriminatory suspiclonless stops. casesareblackorhispanic. V’irtuallyall - thers a racially discriminatory pattern of Drug interdiction enforcement efforts of these cases are controlled by manda capital sentencing, in terms of either the featuring vague drug profiles not only tory minimums, yet not a single white race of the defendant or the race of. suffer from Fourth Amendment prob collar criminal-no insider trader, no victim, based on statistical evidence.1 lems, but can violate Equal Protection death-dealing environmental polluter - guarantees as well. Under a program at has ever been imprisoned under a man 2. Increased spending for indigent de the Port Authority bus terminal in New datory minimum. fense. A United Nations report rates the York City, only lower-income blacks and United States behind 12 other nations in Hispanics, who could not afford more Some mandatory minimums seem almost the freedoms enjoyed by its citizens, expensive means of transportation, have designed to discriminate. Late last year, identifying as a key shortcoming the in been stopped. Of 210 people arrested in a Minnesota judge ruled that it was un adequcy of legal representation for the 1989, only one was white. In 31 of 51 constitutional to punish crack users more poor.’ Rates for appointed counsel cases where the suspect allegedly con severely than powder cocaine users, be should cover reasonable overhead ex sented to a search after quest4oning, cause crack users are overwhelmingly penses and a reasonable hourly fee, with judges suppressed the evidence.’ black while powder cpaine users are no arbitrai caps on total per case com overwhelmingly white. Yet under fed pensation. Prohibit suspicionless stops. Prohibit use eral law, simple possession of5 grams of of racial or ethnic factors in drug courier crack cocaine means a 5- year mandatory 3. Repeal mandatory minimums.’7 At profiles. Permit "pattern or practice" civil minimum, while simple possession of the very least, give the sentencing judge rights actions against law enforcement any amount of powder cocaine, or any athority to consider the same range of entitiles using drug profiles which have a other drug, is a misdemeanor, punishable relevant factors, as is provided generally discriminatory effect. by a maximum of one year. under sentencing guideline systems. Eliminate unwarranted sentencing differ 7. Reversed stings. Reverse stings are Both Houses of Congress have approved entiation between crack and powder co disproportionately used in black neigh new measures which would take this dis caine. borhoods where drugs are sold openly. parity even further: the amount ofpowder They also put police in the unseemly cocaine that would trigger its proposed 4. Make sentencing guideline systems position of manufacturing crime; -in death penalty for drug dealing would be presumptive rather than mandatory. Broward County, Florida, the police 100 times the quantity threshhold pro Anarchy would notresult. A testprogram were even manufacturing the crack they posed for crack cocaine 1.5 kilograms. in Virginia indicates that departure rates sold, until a court made them stop. In a The final bill is currently bogged down in are only slightly higher under non-com study in California, it was found-that 83 a Senate filibuster over gun control is pulsory guidelines that1 8under the com percent of the people caught in reverse sues. pulsory federal system. stings are black, and the amount 3drugs involved is usually "very small."

JUNE 1992 IThe Advocate 164 Prohibity the use of reverse stings to ar 12. Habeas review of bias claims. Re I. Gender. Women tend to commit thug- related and economic drijnes rather than rest drug users. - cent Supreme Court decisions have raised insurmountable procedural barri crimes of violence, yet while in prison, they & Pretrial detention. Black and his have less access than male inmates to pro ers to the consideration of meritorious grams that could help them avoid recidi panic drug arrestees are far more likely constitutional claims raised in habeas vism, such as drug treatment, education and than whites to be detained before thai. In corpus petitions, if n2ç properly raised job training.27 floridain 1989-90, blacks constututed 39 and preserved earlier. Amend federal percent of felony marijuana cases, but habeas corpus statutes to provide that Permit sentencing judges to consider all in made up 58 percent of th?se detained procedural default, retroactivity and suc dividualized offender characteristics, such before trial for that charge. 1 Moreover, cessive-petition restrictions shall not ap as whetherfemale offender is single mother defendants who are incarcerated pretrial ply to claims alleging discrimination on with young children who would be effec tively be orphaned by her incarceration. are more likely to be convictedand to be the basis of race, religion, or other con Also, improve the classification of inmates, incarcerated upon conviction, stitutionally suspect category, unless the - both male and female, to ensure equal access claim was deliberately withheld. to appropriate programs-as well as ade To allow equal access to bail for all so quate funding for such programs. Guarantee cio-economic classes, require that the 13. Sentencing. Some measure ofdiscre equal access to health care for women in amount ofbail set be rationally tied to an tion must be afforded to sentencing mates, particularly for pregnancy and other individual defendant’s actual resources; judges, consider the possible discrimina gender specific health conditions. if a defendant has no meaningful re tory effect, inequity or irrationality of a sources, impose the least restrictive pos sentence they might otherwise impose. 14. State commissions on the overin siNe combination of conditions reason This authority can be conferred without carceration of minorities. California ably necessary to secure the defendant’s upsetting the fundamentalmission of de probation officer Paul Morton tells the appearance at trial. terminatesentencing-the elimination of story of a man whojumps into a river to "unwarranted sentencing disparity." Ad save a baby floating by. No sooner does 9. Battered woman syndrome. Amend justments and departures to avoid dis he save it than one baby after another evidence rules to allow use of battered- crimination wou1d be "warranted," in the comes rushing by, more than he can pos woman-syndrome testimony in court. strictest sense of the word, by the need to sibly save. The moral, says Morton, is Legislation allowing such evidence has maintain proportionality, fairness and the that "at some point, you’re going to have already been aproved in Ohio, Lousini integrity of the process of criminal pun to stop, run upstream and finj out who’s ana and Missouri, andis under considera ishment, and would be required to be throwing them in and why.’ tion in Texas, Vermont, California, rationally justified on the record by the There is no single place where discrimi Washington, Wyoming and Michigan. sentencingjudge. - Governors in Ohio and Maryland have nation and injustice lurk in America’s commuted the sentences of women con A. Race proportionality. Permit the sen criminal justice system. They are every victed of violence against abusive hus tencing judge to consider, in sentencing mi where, and the evidence grows daily bands or boyfriends. nority defendants, patterns of offense con more obvious and painful. Now is the duct i.e., not limited solely by the offense timeforcomprehensive solutions to what of conviction, since disparities can emerge 10. Eviction from public housing. Fed has become a comprehensive national through manipulation of charges, or through disgrace. eral forfeiture law is broad enough to fact or plea bargaining. Allow similar pro allow forfeiture ofpublic housing lease portionality review based on the race of the hold and eviction of an entire family be victim. SCOTT WALLACE cause of the drug use of one member of NACDL Legislative Director the family. In March. federal housing B. Mental illness. One of the reasons that authorities in NewYork sought to evict a the U.S. was ranked behind 12 other nations Reprinted by permission from the Chant 51-year old grandmother and her 18 fam in individual liberties, according to the pion, a publication of NACDL, and by United Nations reported referred to above, the author’s permission. ily members, including two great-grand was the incarceration of the mentally ill. The children, beca%e of her granddaughter’s federal sentencing guidelines specifically drug activities. provided to "mental and emotional condi NOTES tions are not ordinarily relvant" in deciding "Young Black Men and the Criminal Permit forfeiture of a public housing whether to impose a sentence outside the ‘Mauer, guidelines. Yet studies have shown that Justice System: A Growing National Prob leasehold only on the basis of the drug 1cm," The SentencingProject, February 1990- activity leaseholder, currently mentally ill inmates incarcerated without of the asis tratment have a recidivism mate of nearly 100 recommended innon-binding Justice De percent, while diversion into a community- 2Mauer, "Americans Behind Bars: A Corn partment guidelines; encourage alterna bated psychiatric treatment program can re paiison of International Rates of Incarcexa tive sanctions in consideration of adverse duce recidivism to only 15 to 24 percent. don," The Sentencing Project, January 1991. effects on innocent family members. to be considered at "National Household Survey on Drug Permit mental illness Drug Abuse, 11. Victhn impact statements. Victim sentencing, and pennit commitment to ap Abuse," National Institute on impact statements threaten the funda propriate non-prison treatment facilities. 1989. mental fairness of the entire sentencing ‘ "Critics Say Bias Spurs Police Focus on C. Age. Justice Department research indi 20, t990, at process, polluting it with arbitrary con cates that offenders over age 45 are one-half Blacks,"USA Today, December sideralion of class and race, by inviting as likely to recidivate as offender under age 6A Q,ased on 1989 FBI figures. judges to value some victims’ suffering 25, and they cost far more to incarrate more than others. because of greater health problems. Yet 5"Arrests of Youth, 1990," US- Department the federal sentencing guidelines provide ofJustice, Office of Justice Programs, January Prohibit consideration of victim impact that age, like mental illness, is "not ordinar 1992, at 10-11. ily relevant." Permit the sentencing judge to evidence at sentencing in all cases, capi 6 "Race Tilts the Scales of Justice," Dallas tal consider age and likelihood of future dan and non-capital alike, except to the gerousness. For non-violent offender of ad Times Herald, August 19, 1990, at A-l. extent they were known to the defennt vanced years, define imprisonment to in at the timeof committing the crime. clude home detention. The U.S. General Accounting Office re viewed 28 studies of racial factors in capital sentencing from all over the country, and

JUNE 1992 iThe Advocate 165 found that in 82 percent of the studies, "those hourly fee." Judicial Improvements Act of 24 Teague v. Lane, 489 U.S. 288 1989, and who murdered whites were found to be more 1990, P.L. 101-650, 318 c 2. - - - various subsequent cases, broadly and confus likely tobe sentenced to death than those who ingly defining the types of changes in the murdered blacks. This finding was remark ‘6kecommendedby the Federal Courts Study law-new rules"- which will not be avail ably consistent across data sets, states, data Committee, the American Bar Association, able to habeas petitioners; McCleskey i. Zant, collection methods and analytic techniques." the Judicial Conference and four Circuit Con 49 Cr.L. 2031 April 16, 1991, changing the Death Penalty Sentencin’: Research Indi ferences, the Judicial Conference’s Comm standard governing dismissal of successor ha cates Pattern of Racial Disparities, mittee on Crintinal Law and Probation Ad beas petitions from "deliberate abandonment" GAO/GGD-90-57, February 1990, at 5-6. ministration, George Bush when a U.S. Con to the more stringent "cause and prejudice" The Georgia study reviewed by the Supreme gressman, and the U.S. Sentencing Commis test. Court in McCleskey v. Kemp, 481 U.S. 279 sion, in its massive Special Report to the 1987, found that a person convicted of mur Cong1-ess: Mandatory Minimum Penalties In 25’Thoup Aims to Stop Use of Jails as Shelters deriag a white was 4.3 times more likely to be the Federal Criminal Justice System, August for Mentally ifi," CriminalJusticeNewsletter, sentenced to death than a person convicted of 1991, including negative comments on man February 1, 1991,at2. murdering a black The study, conducted by datory minimums even from halfoftheprose- - Professor David Baldus of the University of cutors surveyed. "Expense of Housing Aging Prisoners Iowa, also found that prosecutors sought the Taxes the System: Number of Elderly Inmates death penalty for 70 percent of black defen "The U.S. Sentencing Commission reported Rising Nationally," Houston Chronicle, May dantswith white victims, but for only 15 per on June 27, 1989 that federal judges stayed 12, 1991, at 6A. cent of black defendants with black victims, within the guideline sentencing ranges 82,3 27 and only 19 percent of white defenents with percent of the time, thus demonstrating that See Report of Florida Supreme Court’s black victims. the guidelines are "an overwhelming suc Gender Bias Study Commission, cited in cess." Under the pilot project in Virginia, 78 "Drug Crimes Put More Women in State Pris 8NCJA Justice Research, Novetnber/Decem percent ofthe sentences fell within the xecom ons," St. Petersburg Times, December 30, ber 1990, at 7, citing recently released statis mended guideline range. Voluntary Sentenc 1990, at 16A. tics from the National Corrections Reporting ing Guidelines, Report of the Judicial Sen Pmograrn mun by the U.S. Departtnent of Justice tencing Guidelines oversight Committee to "Drugs In Ow Midst," supra n.7. Bureau of Justice Statistics. Accordingto the the Judicial Conference of Virginia, Septem statistics, blacks serve an average of 35 per ber 1989, at 7-8. The report observed that cent oftheir maximum sentences before being "compliance rates of 75 to 80 percent have parolied, whilewhites serve 29 percent. been judged successful in reducing guidelines progarns which have been judged successful "Race Tilts the Scales," supra n.8. in reducing disparity," and concluded that the voluntary guideline system should be spread ‘°Reforming a Discriminatory Criminal Jus statewide and made permanent. Id. at 42. tice System "Drugs in OurMidst," supra n.7, Similarly, the Federal Courts Study Commit at Al. tee, at pp. 135-39 of its Final Report, stq’ra, urged Congress to give serious consideration Final Report of the Federal Courts Study to making the federal guidelines non-compul Committee, April 2,1990, at 138. sory. tZ*Tea Years For Two Ounces," The Ameri ‘8Messina, "Judges Limit AU-Out War," Na can Lawyer, March 1990. tional Law Journal,April 15, 1991, at 14,

13 Minnesota v. Russell, Minn. 4th Judicial 19 "Drugs in Our Midst," supra n. 7 29 of 35 That., No. 89067067, Dec.27, 1990 Alexan arrestees in reverse stings were black, and one der, J.; upheld on appeal by the state Supreme was hispanic; a superior court judge observes Court, December 13,50 Cr.L. 1296. Accord that "I see alot ofreverse stings in the minority ing to the National Council on Crime and communities, but I haven’t seen any in pie Delinquency: "Drug enforcement has been domintly white areas.’ narrowly focusedon crack, the drug of choice among the underclass, which is also dispro 20Florida Bias Study Commission, portionately Black and Hispanic." ‘mie Im supra n.5, at 68. pact ofthe War on Drugs," NCCD, December 1989, at 5, In Los Angeles, 96 percent of the 21 Clarke and Kurtz, "The Importance of In defendants arrested for crack distribution are terim Decisions to Felony Trial Court Dispo black. "Whites, Not Black, Are theCore of the sitions," The Journal of Criminal Law and Drug Crisis," USA Today, December 20, Criminology, Vol. 74, No. 2, 1983. 1990, at Al. With pro bono assistance from a team of 14 "Land of the Semi-Free? America Ranks Sullivan and Cromwell lawyers, a federal dis 13th in Liberty, U.N. Says," Washington trict judge threw the case out on "innocent Times, May 25, 1991, at Al descriving the owner" grounds, expressing concern about Human Freedom Index ratings for 88 nations, making the entire family homeless, and ex as contained in a report of the U.N. Develop pressing admiration for the grandmother’s ef ment Program; other U.S. problem areas in forts to hold the family together and discour clude freedom from governmental coercion age drug activity. "Family Cannot Be Evicted and torture, freedom from capital punishment, Because of One’s Drug Sale," New York "...Our forefathers, who brought forth counsel ofone’s choice, economic equality for Times, March 27,1991, at Bi, on this continent a new nation, con minorities, and imprisonment of the mentally ceived in liberty and dedicated to the ill. This was the test used by the Supreme Court proposition that all men are created in barring victim impact testimony in cital ‘5This recommendation has been endorsed by cases until the Payne decision. Booth v. Mary equal." the Congress, in setting up a committee ofthe land, 107 S.Ct. 2529 1987 the focus "on the Judicial Conference to study federal indigent character and reputation of the victim and the -- defense progams and mandationg that among effect on his family ... may be wholly unre its recommendations should be a proposed lated to the blame worthiness of a particular formula for indigent defense compensation at defendant .,, unless known to the defendant the federal level "that includes an amount to before he committed the offense". cover reasonable overhead and a reasonable

JUNE 1992 IThe Advocate 166 CONSTITUTION CAME UP SHORT ON MAilER OF EQUALITY

By Eleanor Holmes Norton who could have had no sense of today’s continuing readjustment to the needs of world. In a recent controversial address, society. It is a system always in search of Ours is the oldest constitutional democ Associate Justice Thurgood Marshall values. It is we who bear responsibility racy on Earth, giving Americans cause sought to refute this notion. for the quality of our justice, not our for celebration in this bicentennial year. founding document. But surely the pragmatic American mind He reminded us that the Constitution we can convertax least some of that celebra revere is not the same one the founders Featured in the Lexington Herald- tory energy to good national use, We created. He argued for"a sensitive under Leader, Lexington, KY, October 1,1987 celebrate our Constitution best when we standing of the Constitution’s inherent take note of our successes andpledge to defects, and its promising evolution." correct our deficiencies in meeting our own constitutional ideal. The bicenten The fact is that even the Bill ofRights was nial shall have served the nation well if it added to the Constitution after a fierce re-energizes the commitment to equality, political struggle, and was notpart of the the most conspicuous omission from the founding idea. The guarantees ofequality Constitution hi the 18th century and the were inserted painfully 80 years later. most important constitutional reform of Equality has been an acquired taste in this the 20th. country. fleyond Equality has been one of the discordant The Marshall speech may havebeen the themes in the American symphony. The warning the country needed to avoid the Voting sour note, of course, was slavery, and it kind of revisionist history that is un was there from the start, marring the lofty American. It is the best reply to those who NewWorld enterprise. When slavery be would embalm the Constitution in"di came embedded in the Constitution, a vine intent," as ChiefJudge Sol Wachtler struggle of tragic proportions was guar of the New York Court of Appeals has anteed: We are still playing out that strug called the original intent notion popular gle, still trying to harmonize the original ized by Attorney General Edwin Meese dissonance. and others. How, after all, could a docu ment wtitten in 90 days survive for 200 ilaxil It took decadesto addressracial discrimi years? Only because Americans havehad nation, but progress since World War IT the good sense to look with Justice Mar has been dramatic when compared with shall not only at what he calls "the birth the entire preceding period of constitu of the Constitution but its life." tional government. Out of this struggle not only the first American consensus on Neither the Constitution nor any law is racial equality. The meaning of equality ever set upon a fixed, unerring path. The itself has been deepened and broadened. law is neither noble nor base. It can be l1Je the eopLt, neither. It has been both. --?-. What beganas an effort to erase our most conspicuous constitutional flaw has de The law was base when it rationalized

veloped into that and much more. Consti slavery. In its statutes and decisions, the 1’.’ -.#- - -. __‘ __* tutional interpretation has brought an ex law built an evil tower of jurisprudence llaordinary array of Americans under the to justify and cement slave status. And constitutional umbrella-from women and when war overturned the slave system, -- handicapped people to illegal aliens and our law invented Jim Crow and separate welfare recipients. The post-Civil War but equal, an intricate embroidery of in equality amendments have been inter equality whose effects we are still trying preted to include people and to bar prac to root out. tices impossible for the founders to have foreseen and for some-blacks and The law was noble when it applied its women, for example-they specifically own self-corrective and overturned doc excluded. The sensitive interpretation of trinal segregation. Lawyers and judges the Constitution calibrated to meet both. applied the same Constitution to lead our the spirit of the document and the chal country to an entirely different notion of Mountain Association for Community lenge of change in a dynamic society is a equality not embraced by the majority of major reason that our country, despite its Americans. Economic Development polyglot nature, has remained a stable constitutional democracy for 200 years. That the same Constitution could yield Published by MACED Yet the curious idea has become fashion results as antithetical as segregation and 433 Chestnut St. able Berea,KY 40403 that the Constitution is anchored like integration should be a warning of the 606986-2373 a rock to the original intent of its authors, need for permanent self-criticism and

JUNE1992 IThe Advocate 167 APTER 14

Don’t turn Johnny’s building blocks into stumbling blocks.

Johnny learned his ABC’s to gain the As Thomas Jefferson said, "...if we power of reading. "A chitd who can read,’ think them not enlightened enough to his teacher said, ‘has no boundaries." exercise their control with wholesome likewise, the Bill of Rights are the discretion, the remedy is not to take it building blocks of everyday life. They from them, *but to inform their give Johnny the power to speak his discretion by education." opinion, to be treated fairly by law, and to Don’t let the question of your child’s worship anywhere at any time. The Bill rights be a stumbling block. of Rights guarantees these things Protect your children’s futures, Teach and more, in writing. them their rights today. But if Johnny doesn’t know the Bill of Rights, he has theboundaries of his ignorance.

The Bill of Rights. What would life be like’4withoUt it? cJi: For more information. wtite The Constitution, 808 7th St. NW. Washington, DC 20006

fl.. ,c...,,,, ,,ptnwJ kn,, ,,., .,.,-,Iy ,_O... th. ,t th ,pe,,,.a """

Valerie iltyant & Jennifer Kerr Western Kentucky University

JUNE 1992 [The Advocate 168 CHILDREN& THE CONSTITUTION

Barbara Holthaus

"What shall the world do with its voice overthe phone. The jury wouldn’t 550,86 S.Ct. 1045 1966. children?"- Robert Bly be allowed to hear about the baseball glove you took two years ago. If con In Gault, the Court held that the due Imagine that you are a bored fifteen year victed, the longest you can be jailed is processclause of the Fourteenth Amend old in a small town. You and a friend two months. You could appeal your sen ment to the U.S. Constitution at the very make a crank call to a neighbor lady. tence to a higher court. A record would least entitled children to ‘Tundamental Imagine that she calls the police. You be made that you and your lawyer could fairness" when faced with delinquency don’t know’exactly what she tells them. comb for mistakes. charges. ibis "fairness" was deemed to The police come and take you to a deten include the right to notice of the charges tion home. Your parents are both at work Does this seem fair to you? It didn’tseem a Fourteenth amendment right, the right so they don’t know where you are. The fair to Jerry Gault, the fifteen year old against self-incrimination a Fifth next thy you go to a courtroom and the boy, who faced six years in a state boys amendment right and the rights to coun judge starts asking you questions. You’re home for making a phone call. His law sel and to confront and cross-examine not sure why you’re there. You are scared yer filed a petition for habeas corpus that witnesses against them Sixth amend and you want to go home. You think ended up in the U.S. Supreme Court and ment protections. maybe if you tell him what he wants to changed the juvenile justice system. hear, you’ll go home. Your mother is Gault and a subsequent case, In re Win there. She wants to know why the neigh THE DEVELOPMENT OF DUE ship, 397 U-S. 358, 90 S.Ct. 10681970 bor lady isn’t there, She wants to know PROCESS FOR JUVENILES recognized that the consequences of an how she knew it was you and exactly adjudication of delinquency in a chil what she said. Thejudge tells her that she Until the U.S. Supreme Court issued its dren’s court were roughly equivalent to doesn’t have to be there. Instead a police court ruling in Application of Gault, an adult criminal conviction. Children officer gives the judge a summary’ of a 1967 children were routinely faced with were often confined to state homes for single conversation he had withher. The such kangaroo courts. Since children long periods of time. The homes were judge thinks he remembers hearing that were considered to be in the custody of locked and often run like prisons. Win- two years before you stole another kid’s their parems, they were notentitled to any ship confirmed the Court’s ruling in baseball glove, although you were never liberty interests under the federal. consti Gault and required a standard of proof charged and never came to court about it. tutions. Instead, juvenile courts were beyond a reasonable doubt of every ele He tells you you are guilty of being a considered to be "civil" not "criminal" ment of the crime constituting delin habitually immoral delinquent and sends and the Bill ofRights simply didn’tapply. quency before an adjudication could be you to a state-run home until you turn had. twenty-one.Noone records any of this so Juvenile courts were very informal and there’s no record of what happened that usually very unfair. The idea was that A third case, Breed v. Jones, 421 U.S. day. You are told there is no appeal - the children received "treatment" rather than 519, 95 S.Ct. 1779 1975, completely judge’s decision is final. You’re not even "punishment" and were exempt from the abolished the concept that juvenile pro sure what you did or said that was wrong. protection that the Constitution affords to ceedings were "civil" in nature. Breed adults accused of crimes. The proceed recognized that a fmding of delinquency Now imagine that you made that phone ings in juvenile court were characterized carries such stigma and the possibility of call but you’re eighteen years old. The as "civil" rather then "criminal." The harsh consequences that jeopardy at woman would have to come down and problem was that treatment often taches once the fmding is made. The swear out a warrant and have you ar equalled punishment and informality thrust of Breed was to prevent children rested. You would have been entitled to equalled arbitrariness. Children could be from being adjudicated as delinquent in post a $200 bond and go home the same shut away for longperiods of timein state juvenile court and then facing the same day. Thejudge would have informed you run institutions where the conditions charge as adults in the circuit court. exactly what the charge was against you. were often worse than those in adult pris He would also tell you that you didn’t ons. Even before Gault, the Court recognized have to answer any questions or say any that the transfer of jurisdiction fromjuve thing about the phone call. You would As the U.S. Supreme Court put it "there nile to adult court was so serious that have the chance to talk to a lawyer. The is evidence, in fact, that there may be children were entitled to due process dur lawyer would have come to court to help grounds for concern that the child re ing the transfer hearing. See Kent v. you. You could request a jury trial if you ceives the worst of both worlds: that he UnitedStates, supra. wanted one. The neighbor lady would gets neither the protections afforded have had to come in and testify under adults nor the solicitous care and regen oath. Your lawyer could have questioned erative treatment postulated for chil her to see how she knew you were the dren." Kent v. United States, 383 U.S. THE EBB AN] FLOW OF CONSTI

JUNE 1992/The Advocate 169 TUTIONAL PROTECTION FOR Fourth amendment and the exclusionary 56. CHILDREN rule since the amendment protects per sons notjust adults a9d is not limited to However, due process emands that the Following Gault, a series of U.S. Su criminal prosecutions. rights that are afforded to children either preme Court cases began to explore and through statute or case law must be en define the parameters of juvenile rights In passing, it should also be noted that forced. Kentucky has specifically recog under the federal constitution. children have specifically been held to nized that the elements of due process be persons under the Federal Constitu must be met in juvenile proceedings in In McKeiver v. Pennsylvania, 403 U.S. tion. In Tinker v. DeMoines, 393 U.S. state court. Worhnan v. Commonwealth, 552, 91 S.Ct. 1976 1971, the Court 503, S.Ct. the Court recognized that high Ky., 429 S.W.2d 374 1968. The Court found no constitutional rightto a jury for school students are persons under the of Appeals has ruled that the violation of children hearkening back to the concept federal constitution and entitled to funda any statutory provision designed to pro ofjuvenile court as an intimate, informal mental rights which the state must re tect children requires the dismissal of the proceeding. The McKeiver Court re spect, including freedom of expression juvenile petition. Davidson v. Common treated from Gazdt and Winship’s expan under the First Amendment. wealth, Ky.App., 613 S.W.2d 431 sive idea of a more formal adversarial 1981. juvenilejustice system, refusing to label For all its willingness to exemptjuveniles it as either criminal or civil. from adult criminal protections, the Court In addition, there are some circumstances refused to fmd special protection against where the Kentucky courts have found The Court found the juvenile Due Proc the application of the death penalty to some measure of special protection for ess standard developed by Gault and children. In Stanford v. Kentucky, - juveniles under both the Kentucky and Winsh4p to be one of fundamental fair U.S. , 109 S.Ct. 2969 1989, the Federal Constitutions. ness - emphasizing the fairness in the fact Court found no Eighth Amendment pro finding procedure. "The requirement of hibition against the execution of sixteen In Elmore v. Commonwealth, 138 notice, counsel, confrontation, cross-ex and seventeen year olds. S.W.2d 956, 961 1940, a mother had amination and standardof proof naturally acquiesced to a warrantless search for flowed from this emphasis." McKiever, However, the Courthas required that stat evidence against her seventeen year old 403 U.S. at 544, 91 5.0. at 1985. The utes making children eligible for death son. The Court found that the mother McKieverCourt seems to be saying a jury following a transfer to adult court must could not waive herson’s rights because is not required for fairness or accuracy of set a minimum age. Thompson v. Okla the Court noted "we are dealing with an the fact finding process. homa, 487 U.S. , 108 S.Ct. 1987 infant, one about whom the law throw 1988 Kentucky’s minimum age for the every reasonable protection and in whose In Schall v. Martin, 467 U.S. 25, 104 imposition of death is sixteen. KRS favor the tendency is to resolve every S.Ct. 2403 1984 the Court okayed pre 640.040. doubt." The Court upheld Elmore’s right ventive detention of juveniles prior to to be free from warrantless searches tin- thai as long as the detention process sat der both the federal constitution and Sec isfied due process in the form of an expe KENTUCKY & CHILDREN’S tion 10 of the Kentucky Constitution. dited adversarial probable cause hearing RIGHTS and served some "legitimate state inter The idea of extraprotection forjuveniles est." Preventive detention loosely trans Most of the minimwn protections guar was held to transcend the freedom of the lates to preventing the detained child anteed to children under the Federal Con press granted under the first amendment from committing more offenses. It ap stitution are incorporated into Ken of the U.S. Constitution and Section eight pears to be permissible for any purpose tucky’s Unified Juvenile Code KRS of Kentucky’s Constitution in FTP v. except punishment. The Court fell back Chapter 600. However, the Kentucky Courier Journal, Ky., 774 S.W.2d 444 on the pre-Gau!t concept that children Courts havenot shown any special inter 1989. In FTP, the Kentucky Supreme have no great liberty interest and that est in the expansion of the rights of chil Courtfound that ajuvenile’s specialright pretrial detention is simply the substitu dren under the code or through Ken to confidentiality in all court proceedings tion of state control for parental control. tucky’s Constitution. outweighed the First Amendment inter ‘This is commonly known as the concept est of the press in coveringa circuit court ofpa.renspatriae. As the Kentucky Supreme Court noted, proceeding concerning the constitution not all constitutional rights are afforded ality of the juvenile waiver statute. The Court has never expressly ruled that to children, only fair treatment. Jefferson Fourth amendment expressly applies to County DHS V. Carter, Ky., 795 S.W.2d In other matters, Kentucky recognizes juveniles in court. However, in New Jer 591990. about the same level of protection of the sey v. TLO, 105 S.Ct. 733, 469 U.S. 325 U.S. Supreme Court - see bavidson v. 1985, the Court did rule that the Fourth Traditionally, juvenile matters have been Comrnonwealth,613 S.W.2d431 1981 amendment applies to warrantless treated differently than adult offenses. fifth amendment right against self in searches of high school students by pub The state is considered to be acting as crimnination recognizing Gmat; Dryden lic school officials although the Court parens patriae rather than as a prosecut v. Commonwealth, Ky., 435 S.W.2d 457 applied a lower standard than the adult ing authority. It has been a principle the 1968 no right to jury trial in juvenileS criminal "probable cause to believe a ory of juvenile law that an individual court under U.S. Constitution. Baker v. crime has occurred" standard. The Court should not be stigmatized witha criminal Smith, Ky., 477 S.W.2d 149 1971 no instead held that the legality of the search record for acts committed during minor right to bail in juvenile court under 16 of depends on "the reasonableness of the ity. By providing young people with Kentucky Court becausechildren are not search under all circumstances." 105 treatment oriented facilities rather than "prisoners." S.Ct. at 742. In TLO "all circumstances" simple punishment, antisocial behavior included the purpose of the search and can be modified and the offenders will age and sex of the student. develop as law abiding citizens. How ever, such treatment does limit the con There should be no question that children stitutional rights that are traditionally are generally entitled to the benefits of the provided for adult offenders. Carter at WHERE DO CHILDREN GO

JUNE 1992 IThe Advocate 170 FROM HERE? RESOURCES ON THE Reflecting Upon the Tension BILL OF RIGHTS Between Individual Rights While it is apparent that children have and Community benefited from an expansion of rights American Bar Association Needs under the state and Federal Constitutions Special Committee on Youth Activity 11 7-8: Have students Education since Mull, they still have less protection for Citizenship study synopses of court cases which than adults who fact criminal charges. 541 North Fairbanks Court Chicago, IL 60611-3314 resulted in imponant interpretations There appears to be an increasing trend 312 988-5735 of rights. Use the resources in society to see children who commit suggest Update on Law Related Education, ed in Activity 9, as well as encydo crimes as little adults whoshould pay for a periodical for pedia their crimes. This may lead to a juvenile teachers of students in grades 5-12, is one of a number of entries under the names of the system that more closely resembles the excellent resoumes available from the ABA. cases themselves. We suggest the adult adversarial judicial system. One following cases: American Civil Liberties Union canonly hope that we don’t lose sight of 132W. 43rd Street The Trial ofJohn Peter Zenger the fact that evenjuvenile delinquents are New York City, NY 10036 established right of the press to still children. Perhaps in time we can 212 944-9800, ext. 607 criticize public officials, 1735 developa system that recognizes the par ticular disabilities of childhood and bal The ACLU has a directory of briefmg papers, books, Marburv v. Madison established pamphlets, and posters on Bill of Rights cases. power of judicial review, 1803 ances the special needs of the juvenile defendant with the need for fairness and United States v. Burr trial of respect for all individuals who become American Historical Association Aaron Burr; strictly interpreted involved in the criminal justice system. 400 A Street, SE the Constitution’s definition of Washington, DC 20003 202 544-2422 the crime of treason, 1807 BARBARA M. HOLTI{AUS Barron v. Baltimore declared first Assistant Public Advocate The ABA has a catalog of publications pertaining to the Appellate Branch Bill of Rights which is available upon request. ten amendments binding on the Frankfort, KY national government but not lim American Newspaper Publishers Association Foundation iting states’ power, 1833 ANPA - Dred Scott v. Sandford supported The Newspaper Center rightof property in slaves held in Commission on the Bicentennial 1W. Box 17407 Dulles Airport of the United States Constitution Washington, DC 20041 U.S. territories, 1857; later over 808 t7th Street, NW 703648.1000 ruled 8th Floor Plessy v. Ferguson established wSdngton, DC 20006 The ANPA Foundation cosponsored Newspaper in 202 U5A-1787 Education Week with the International Reading Associa "separate but equal" principle, Funded by Conress through 1991, the Commission tion. The 1991 observation focused on and encouraged 1896; later overruled distributes a yanety of educational materials. including- students to read newspapers to learn about the Bill of pocket Constitutions, to teachers and schools nationwide. Rights. Teachers interested in Nifi Week or other Brown it Board of Education of educational efforts by newspapers should contact the Topeka overturned "separate but Constitutional Rights Foundation educational services department oitheir local papers. equal," 1954 - 601 K’mgsley Drive Los Angeles, CA 90005 West Virginia State Board of 487-5590 Center for Civic Education 213 5146 Douglas Fir Road Education p. Barnette outlawed The BillofRights in Action, a quarterly national curricu Calabasas, CA 91302 statutes requiring public school lum publication focusmg on issues related to the Bill of 818 340-9320 Rights for grades 8-12, is published by the Constitutional students to salute flag, 1943 Rights Foundation. The Center for Civic Education offers an extensive Baker p. Carr established "one program foster civic competence responsibility: to and person, one vote" principle in National Archives and Records Administration the National Bicentennial Competition on the Constitu Public Programs tion and the Bill of Rights with new materials for 1991 state legislatures, 1962 Office of emphasizing the Bill of Rights. Texts for the classroom 7th and Pennsylvania Avenue, NW study of the Constitution and Bill of Rights are available. Miranda p. Arizona elucidated Washington, DC 20408 rights to remain silent and to have 202 724-0454 an attorne 1966 The National Archives has produced two teaching Center for Research and Development in Law Related packages containing facsimiles of documents and Education CRADLE Near v. Minnesota ruled that a teacher’s guides, one on the Constitution and another on Wake Forest University School of Law stare cannot prevent in advance the BiJl of Rights. The Archives also reproduces and P.O. Box #7206. Reynolda Station Rights in Winston-Salem, NC 27109 publication of materials, 1931 publishes documents related to the Bill of 919 759-6061 posters, pamphlets, and books. Engel v. Vitale ruled that public CRADLE, housed at Wake Forest University, has been schools cannot require prayer, National Council on Religion and Public Education designated by the Commission as a repository for NCRPE teacher-developed lesson plans and materials on law and 1962 N 162 Lagotnarcino Hall the Constitution for grades K-12. Catalogs of lesson plans Wisconsin v. Yoderprevented Iowa State University are available. Wisconsin from requiring Amish Ames, IA 50011 515 294-7003 parents to have children formally educated, 1972 The NCRPE offers a wide variety of teaching materials and guidelines for teaching about First Amendment Richmond Newspapers, Inc. p. religious liberty. A catalog is available upon request. Virginia rtiled that press should National Council for the Social Studies NCSS have access to trials, 1979 3501 Newark Street, NW it Duke Power Co. ex Washington, DC 20016 202 966-7840 panded employment rights for minorities, 1970 The journal of the National Council for the Social Studies, Social Education, featured issues on Interna- - tional Human Rights in September 1985, Religious Liberty in September 1990, and the First Amendment in October 1990. Additional issues in 1991 are devoted to the Bill of Rights. JUNE1992 IThe Advocate 171 HAPTER 15

Constitution of‘The ‘UniteS States fFiftñ Ytmenciment

9’[o pcrson shall be compelled in arty criminal case to be a witness against himself..

Constitution of [Kentucky Section 11

In allcriminalprosecution the accusedcannot be compelled togive

evidence against himself -

JUNE1992 ITheAdvocate 172 THE FIFTH AMENDMENT

"A prisoner is not to be made the De voluntarily. In Spano v. New- York 360 Beecher 11, Beecher v. Alabama, 408 luded Instrument Of His Own Convic U.S. 315,79 S.Ct. 1202,3 L.Ed.ed 1265 U.S. 234,92 S.Ct. 2282,33 L.Ed.2d 317 tion." -Hawkins, Pleas of the Crown 1963, police use of deceit to play upon 1972 the Supreme Court held that this 595 8thccl. 1824." the sympathy of the suspects and win a statement, just like those introduced at confession, was rendered involuntary Beecher’s first trial were "part of the The FifthAmendment right against self- and therefore unconstitutional. The talc stream of events beginning withthe arrest incrimination is one of our most cherish ing of a suspect into an officer’s private and were infected by coercion." Again, ed- constitutional provisions. This right office and stripping him of his clothes the Supreme Court found that such state has probably been with us since the be prior to questioning has been found to be ments violated the due process clause of ginning of civilized society. Those who involuntary. Bram v, United States, 168 the 14th Amendment. wrote our Constitution were well aware U.S. 532, 18 S.Ct. 183,42 LEd.2d 568 of the dangers of an inquisitorial system 1897. -- The Court was especially eloquent in the where prisoners were tortureduntil a con case of Culombe v. Connecticut, 367 fession was rendered as in the Star Chain In 1967 and again in 1972 the Supreme U.S. 568,81 S.Ct. 1860,6 L.Ed.2d 1037 bers of England. See Lowell, The Judicial Court twice overturned the death sen 1961, where it appeared that the ac Useof Torture, 11 Han’. T. Rev. 220,290 tence of Johnny Beecher, a black man cused was mentally defective, easily in 1897. Since the mid twentieth century accused of killing a white woman be fluenced and subject to intimidation. Cu in America, we have benefitted from cause the prosecution introduced invol lombe was detained in police custody for rapid development of Fifth Amendment untary confessions. However, both of more than 4 days. He only spoke with litigation. Nevertheless, as we approach these cases were premised on 14th police officers, his alleged accomplice, of the latter partof thetwentieth century, we Amendment jurisprudence. The facts whom he was afraid, and his wife. She, witness the gradual erosion of this treas were horrendous. The suspect, an es by prearrangement with the police, asked ured right. caped convict, was shot in the leg while him to confess. He was never informed fleeing. As he lay in a field, the Chief of ofhis right to remain silent and his right The roots of the Fifth Amendment privi Police pressed a loaded gun to his face to counsel was frustrated by the police. lege against self-incrimination can be and asked him if he had killed the woman. traced all the way back to the Bible, "To Beecher denied it. The Police Chief The Supreme Court found that his con sum up the matter, the principle that no threatened to kill him and another officer fession was not voluntary and it violated man is to be declared guilty on his own fired a loaded gun near his head. Beecher the due process clause of the Fourteenth admission is a divine decree." Maim confessed. The confession was intro Amendment. The Court went on to speak omides, MishmehTorah [Code of Jewish duced along with two detailed statements towards the evils and dangers that exist Law], Book of Judges, Laws of Sauhe prepared by Alabama investigators. with police interrogations: a c-oi, para. 6,11 Gale Judacia Se Beecher signed these statements within ties 52-53. an hour after receiving a morphine injec "Persons subjected to interrogations are torn tion for pain in his leg. The statements from the reliances of their daily existence InZi.ngSungWanv.US.,266U.S. 1,45 were obtained a week or soafter Beecher and held at the mercy of those whose job it S.Ct. is- if such person have committed crimes, as 1, 69 L.Ed.2d 131, the Supreme was arrested. A medical assistant, attend it is supposed they have- to prosecute them. Courtheld that a self-incriminatory state ing Beecher told the investigating offi They are deprived of freedom without a ment would be admissible if it was found cers to let him know if Beecher did not proper judicial tribunal having found them to be reliable and voluntary. However, in tell them what they wanted to know. He guilty, without a properjudicial tribunal hav Brown v. Mississippi, 297 U.S. 278, 56 then left Beecheralone with the officers. ing found even that there is probable cause S.Ct. 461, 80 L.Ed.2d 682 1936, the In Beecher v. Alabama, 389 U.S. 35, 88 to believe that they may be guilty. What Court held for the first time that a confes S.Ct, 189, 19 L,Ed.2d 35 1967 the Su actually happens to them behind closed sion obtained by brutally beating one of preme Court held that the confession and doors of the interrogation room is difficult if the was not impossible to ascertain. Certainly, if suspects inadmissible. In Ash- detailed statements violated the due proc through excess of zeal or aggressive impa craft v. Tennessee, 322 U.S. 143,64 S.Ct. ess clause of the 14th Amendment asthey tience or flaring up of temper in the face of 921, 99 L.Ed.2d 1192 1944, the Fifth were the product of gross coercion. obstinate silence a prisoner is abused, he is Amendment privilege was develop-ed faced with the task of overcoming, by his evenfurther. The Court heldthere that the On retrial, the state of Alabama won a lonetestimony, solemn official denials. The isolation of Ashcraft for thirty-six hours conviction by introducing yet another prisoner knows this - knows that no friendly prior to his confession in a room at the statement. This confession was obtained or disinterested witness is present -and the jail, with a light over his head, while he an hour after Beecher’s arrest and after knowledge may itself induce fear." was questioned in relays by law enforce he had received two large injections of ment authorities, amounted to compul morphine. Upon being questioned by a One ofthe most Thmous and far-reaching sion, Thus, the confession was not made doctor, Beecher then confessed. In cases concerning the Fifth Amendment

JUNE1992 ,‘TheAdvocate 173 was a collection of four cases, Miranda and Edwards rule prevailed once again. use of confession during guilt phase of v.Arizona - Vigmera v. State ofNew York Minnick, who invoked his right to coun-.. trial was not harmless error. The co - Westover v. United States and State of sd while being interviewed by the FBI, found that Kordenbrock’s confession California v. Stewart, 384 U.S. 436, 86 was allowed by the FBI to end the inter which was obtained in violation of Mi S,Ct. 1602, 16 LLEd.2d6941966. In all view and appointed counsel was pro randa, was found to be hannful error. of these cases confessions were obtained vided for him. Petitioner, Minnick, met The confessionthat was introduced at the from suspects who were interrogated in with his attorney on two or three occa penalty phase of Kordenbrock’s capital communicado at the police station. In sions. Nevertheless, on August 25, Dep murder u-ial, was the only piece of non- three of the cases, the suspects were not uty Sheriff, J.C, Denham of Clark circumstantial evidence in which the made aware of their right to remain silent County, Mississippi, went to the San Di state had to prove that the crime was and their right to consult with counsel ego Jail, to question Minnick. Thejailers premeditated. The confession tended to prior tt making the confessions. In the told Minnick that he could not refuse to undermine the mitigating evidence of di fourth case, there was no showing of a talk to Deputy Denharn, Denham advised minished capacity due to use of drugs and waiver of these rights prior to making Minnick of his rights, and Minnick de alcohol. In addition, this same compelled incriminating statements. The Court rec clined to sign a right’s waiverform. Mist- confession was used in the defendants ognized that these issues were of recur nick gave incriminating statements to guilt phase of Kordenbrock’s trial. The rent importance in numerous cases and Denharn, the trial court held that Mm- confession was harmful during this that most custodial interrogations were, nick’s confession was voluntary. He was phase, because it tended to contradict by their nature, coercive. The Court per found guilty of murder and sentenced to Kordenbrock’s contention that he was ceived the need to establish concrete death. However, the Supreme Court under the influence of alcohol and drugs guidelines for law enforcement agencies ruled that Minnick’s confession was in- at the time of the shooting and therefore and courts to follow. The warnings voluntary. The Supreme Court decided did not intend to cause death. which must be given in plain and unam the case in accordance with Miranda and biguous terms prior to any questioning Edwards. Once an individual in custody In the Kentucky Case of, Creech v. Com consist of: invokes his right to counsel, interrogation monwealth, Ky. App. 412 S.W2d 245, "must cease until an attorney is present." 1967; Creech was taken into custody and 1 The right to remain silent; At that point, "the individual must have was advised of his right to remain silent, an opportunity to confer with the attorney as well as of the fact that anything he 2 A warning that anything said can and will and to have him during might could be used against him. be used against the individual in court; present any sub say sequent questioning." Edwards wa "de Creech infonned the officer that he did 3 The right to talk with counsel prior to the signed to keep police from badgering a not desire to make any statements. In investigation, and to have counsel present defendant into waiving his previously as spite of Creech having informed the de during the interrogation; serted Miranda rights." Miranda, supra. tective that he desired to remain silent, Creech’s co-defendant was brought into 4 If the defendant is indigent, a lawyer will In, U.S. v. Graham, 487 F. Supp. 1317 Creech’s presence by the detective and be appointed to represent him prior to any questioning; W.D. Ky.1980 and Kordenbrock v.. was asked to relate what co-defendant Scroggy9l9F.2d 1091 6Cir. 1990 the had therefore confessed; Creech’s co-de 5 Should the defendant indicate in any courts have decided a couple of Ken- fendant’s confession had implicated manner, at any stage of the process, that he tacky cases involving The Fifth Amend Crdech fully. His co-defendant asserted wishes to remain silent and/or consult with ment privilege. US. v. Graham supra that Creech had delivered to him the pis an attorney, questioning must cease at least involved three defendants, James E. On- tel used in the attempted robbery. At this until an attorney is present; ham-GeraldB. Derail-Ronald 0. Durall. point the detective inquired of The Court held that at the time the defen Creech:,’Bill is that right?" Creech, su 6 The defendant may waive these rights, dants obligation to notify authorities pra at 246. Creech responded:,"OK, Pat. provided the waiver is made voluntarily, knowingly and intelligently. arose, defendants were engaged in what Giving him a gun would be like putting a could reasonably be thought to be crimi pack of matches in a kid’s hand," Id. In In general, Miranda, supra, states that nal conduct, therefore, prosecution ofde the event of a retrial, the Court directed fendants for misprision of felony would the lower court to refrain from ising the warnings are required whenever there is a custodial setting and interrogation. violate Fifth Amendment Privilege. One statement,because the statement violated of the elements to prove misprision of a rules of Miranda, supra, and Escobedo, In Edwards v.Arizona,45l U.S.477,101 felony was defendant Graham’s failure to supra. S.Ct. 1880,68 L.Ed.2d 3781981. notify authorities as to the whereabouts The of his son, who was attempting to avoid Recently, Rodney McDaniel, Appellate Supreme Court held that a waiver of the of Advo defendant’s right to counsel must not prosecution. Graham argued that to dis Attorney, Department Public onlybe voluntary,but also must be lcnow close his son’s whereabouts would re cacy, was successful in winning a very ing and intelligent. The Court also distin quire him to give self-incriminating evi important Kentucky case relating to the guished between the dence that could lead to his prosecution Fifth Amendment Privilege. The case of waiver of the right it. to remain silent and a waiver of the right forharboring a fugitive. The same ruling ToddAnders Paulsell Commonwealth to counsel. When the right to remain si was held for defendants, G. Duvall and of Kentucky, No. 90-SC-0l5-MR, lent R. Duvall; "Disclosure of principal of Ky.,Sept. 26,1991. Paulsell was has been invoked, that right can be fense would compel defendants to give charged with the murder of his house- waived by responding to the police initi information placed in the ating questioning. However, when the which might tend to show mate; he was custody by Miranda right to they had committed a crime." police, and he was given Miranda warn counsel has been in ings. He voluntarily accompanied Det. voked, that right cannot be waived until He Counsel has been made available;unless, In another interesting case with a Ken Galloway to the location of the body. the suspect imitates further interrogation tucky defendant, Kordenbrock v. then stated that he did not desire to say by the police. Scroggy,919 F2d. 1096thCir. 1990, the anything further before consulting an at Sixth Circuit held that use of defendants torney. Upon being transported to City that In the most recent case of Minnick v. confession, which was obtained by police Hall, Paulsell allegedly "blurted out" in violation of Miranda, during penalty Almon had been using his food and utili Mississippi, 498 U.S. -, 111 S.Ct. 486, phase of trial was not harmless error; and ties, and he was glad Almon was dead. 112 L.Ed.2d 489 1990, the Miranda

JUNE 1992 ITheAdvocate 174 After arriving at City Hall, at approxi Further discussion of this penalty exception from the Supreme Court in the opinion of mately 5:00 AM, Det, Galloway asked can be found in Hirsch, Milton, "The Road McNeil v. Wisconsin. McNeil v. Wiscon Paulsell to sign a right’s waiver, Paulsell Not Taken" The Champion V61. 25, No.3, sin, 501 U.S._, 111 S.C. 2204 LEd.2d refused. Det. Galloway then held Paulsell April 1991. 158 1991. There the Supreme Court handcuffed to a chair to be interviewed held that McNeil’s invocation of his by other detectives. At 7:30 AM, Det. DECLINE OF THE PRIVILEGE Sixth Amendment right to counsel during Dodd arrived at City Hall. Unaware of ajudicial proceeding didnot constitutean Paulsell’s earlier request to see an attor In spite of the numerous cases that ad invocation of right to counsel derived by ney, Det.Dodd "explained" the waiver of vanced the greatFifth Amendment Right Edwards, supra. The Court’s decision rights to Paulsell, obtainedasigned rights to be free from compelled self-incrimina appears to be sinister and barbaric in ef waiver at 7:39 AM. and took oral and tion, the recent cases of Arizona it. Fad fect. written statements. The Ky. Supreme minante, 499 U.S. -, 111 S.Ct., 111 Court held in accordance with, Edwards L.Ed.2d 302, and McNeil it. Wisconsin, It was established in the Court’s holding it. Arizona, supra and Misnnick it. Mis 501 U.S._, 111 S.Ct. 2204, 115 LEd.2d of Arizona it. Roberson, 486 U.S. 675, sissippi, supra. When Paulsell informed 158 have landed a devastating blow to 108 S.Ct. 2093, 100 LEd.2d 704 1988, Det. Galloway that he wantedto saynoth this ancient principle. that a defendant who invokes the right to ing more before seeing an attorney, ques counsel for interrogation on one offense tioning should have ceased unless In Fuiminante, supra, the Supreme Court may not be reapproached regarding any Paulsell held that involuntary confessions are is present. In hadachange of mind. The Court now applicable under the harmless error offense unless counsel went on to say that despite Paulseli’s Michigan it. Jackson, 475 U.S. 625, 106 assertion of his right to counsel, and his rule. The Court appears to have departed S.Ct. 1404, 89 L.Ed.2d 631 1986, the initial refusal to sign the rights waiver, he from its long established principle that Supreme Court held, "that the defen was held 2 1/2 additional hours waiting coerced confessions violate due process dam’s invocatios of his right to the assis to be interviewed by other detectives. It in all situations; even if there is sufficient tance of counsel at arraignment prohib must be understood that Paulsell signed evidence aside from the confession to ited the police from initiating a post-ar the waiver of rights at 7:39 AM, follow support the conviction. See Roger v. raignment custodial interrogation with ing an evening at a bar and a night of Richmond, 365 U.S. 534,81 S.Ct. 735 5 out notice to his lawyer." With most de crime, atTest, and detention-all without LEd.2d 760 1961; Ma/ins/cl v. New fendants being layman to the law, it sleep. Considering all of the circum York, 342 U.S. 401, 65 S.Ct. 781, 89 would be ridiculous for the Court to re stances, the court concluded that the LEd.2d 561 1945, Sn-oble it. Cal jfor quire them to invoke their Sixth Amend statements should have been suppressed nia, 343 U.S. 181, 72 S.Ct. 544, 26 ment Right to Counsel as well as their by the lower court and Paulsell did not L.Ed.2d, Jackson v. Denno, 378 U.S. Fifth Amendment Right to Counsel. The knowingly andvoluntarily waivehis pie 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 defendants in most cases, do not know viously asserted right to have counsel 1964. The Supreme Court seems to which constitutional rightthey are invok present during questioning. think that because the harmless error rule ing. The fact that the accused has re developed in Chapman v. California, quested counsel, should be a clear indi TEE HOBSON’S CHOICE 386 U.S. 18, 87 S.C. 824, 17 LEd.2d cation that the accusedrecognized that he 705 1967, has been applied to numer is not capable of dealing with his oppo The Supreme Court has also recognized ous other trial errors, there is no reason nents without help under any circurn that a statement may be compelled when why it should not be applied to an error stances. the accused will be penalized if he opts of this nature. However, what the Court to remain silent. This penalty exception fails to realize is thata coerced confession Now an accused will face the confusion as it has come to be known is illustrated error is different and more serious than of having asserted his right to counsel in in the case of Garriy v. New Jersey, 385 other erroneous evidence that has been court before a judge, and having an attor U.S. 493, 87 S.Ct. 616, 19 L.Ed.2d 562 admitted in the past. ney who represents him; yet, he may be l967.Garri involved allegations that approached by law enforcement officers several law enforcement officers fixed The Chapman case recognizes and indi repeatedly on other charges unless he traffic tickets. During the investigation, cates that thereare some rights that are so again asserts his need for counsel. the officers were given the option to give essential to a fair trial that a violation of Clearly, the Supreme Court’s goal here is statements concerning these allegations one of them cannot be treated as a harm to increase those convictions won by con or lose their jobs. less error. Chapman, supra,clearly noted fessions. Such decisions may move us that there were three constitutional errors from the adversarial system we have The prosecution introduced these state that could never be applied to the harm come to rely on back to the inquisition of ments at a later trial wherein the officers less error doctrine; 1 coerced confes old, that predated the founding of this were convicted. The United States Su sions; 2 depriving one of the right to democracy. preme Court reversed the convictions counsel at trial and; 3 trying a defendant holding that: before a biased judge. KEITH MOORE, Resident, FCDC, The choice given petitioner was either to Now, the Supreme Court departs from its Frankfort, Kentucky 40601 forfeit their jobs or to incriminate them position in Chapman, supra, by ruling selves. The option to lose their means of that the admission of a coerced confes Keith is 37 years old, a native of Indian livelihood or to pay the penalty of self-in sion canbe applicable under the harmless apolis, Indiana. He is currently an mrnate criminatien is the antithesis of free choice so error rule. Fuhninante, supra, goes speak out orremain silent. That practice, like of Frankfort Career DevelopmentCenter, against years of Fifth Amendment juris with Death Penalty Data here interrogation practices we reviewed in Mi prudence. In addition, such a ruling is and works randa v.Ap-izona, 384 U.S. 436, 464-465,16 admit at the DPA office. L.Ed.24694,718,865.Ct. 1602, IOALR3d oppressive to the human spirit. To 974 is ‘likely to exert such pressure upon an evidence that was obtained by force and individual as to disable him from making a immoral methods, offends and dishonors freeand rational choice.’ We think the state our justice system. ments wereinfectedby thecoercion inherent in this scheme of questioning and cannot be The Fifth Amen em. privilege against sustained as voluntary under our decision - self-incfimination suffered a side blow

JUNE 1992 ITS Advocate 175 ______THE CONSTITUTIO The wàr& we live by

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