Friday, July 22, 2011

Freedom is A Right - Stars and Stripes A Responsiblity

They never leave room for the possibility of self-error.  Pundits, commentators, bloviators all.  And those on the sidelines seem to be screaming for a simpler time, a less restrictive one, one when men stood back-to-back, walked ten paces, and turned to face each other, each intent on taking from the other's wife her husband and from his children their father.

We've walked a million miles since then.  But we lost our pace.  We stopped to rest on a perceived perch of contemporary thought.  We stopped to enjoy our imagined excellence.  We've lingered outside courtrooms to spit in the face of a social contract - one once bound in a collective embrace and still grounded in a belief that inside each of us shines the spark of the Creator. 

In an age in which the private affairs of men often consumes the nation's focus, more so than the economic and social realities facing it  - the lack of a balanced budget, a comprehensive healthcare bill that exceeds Congress' regulatory authority under the Commerce Clause - a pervasive lack of personal responsibility - and unconstitutional infringements on individual freedoms, remembering our genesis is critical.  Remembering that we are but dust, that our time on this earth is limited, and that we have a duty to forge a better life for our offspring, requires a more judicious dealing and a return to the framework upon which our Republic was built. 

It was only 220 years ago, on December 15, 1791, that the Bill of Rights was ratified.  These 10 Amendments to our Constitution were not, as Justice Brennan opined, a product of legislative invention, rather a declaration of divinely ordained liberties. They represented a united belief in immutable freedoms, i.e. the right to worship freely, to assemble peaceably, and to speak (relatively) unreservedly (the freedom of speech, contrary to popular belief, not being absolute).

Our nation's founding fathers understood man's intrinsic vulnerability and tendency toward self-preservation - hence the right to keep and bear arms. They believed that a person's home should be a place of impregnable refuge - hence the owner's ability in times of peace to decide who could be quartered there. And, the Founding Fathers believed, individual freedom was a birthright - hence the proscription against unreasonable searches and seizures, being tried twice for the same offense, and being deprived of life, liberty, or property without due process of law.

For the founding fathers, the rights to a speedy and public trial and to protection from cruel and unusual punishment were heavenly endowments. They were antecedent rights recognized by men who believed in their existence absent any social contract. But sagacity and foresight told our founding fathers that codification was essential to forestall any infringement upon those rights.

Their conviction permeates every American flag - liberty's banner - freedom's icon in radiant red, unadulterated white and impenetrable blue.  But our stars and stripes have met the challenges of human frailty.  We are too readily swayed by predilection and preconception, by entitlement and greed, color and creed.  We're ethnocentric xenophobes with unlimited patience for those who kill in the name of God and no tolerance for law-abiding jurors whose verdict is inconsistent with our uninformed judgment.  We've forgotten that freedom is more than a right.  It is a responsibility - and one that should never be wielded in ignorance.

It seems we've a long way to travel on wisdom's journey.  But enlightenment waits patiently - trillions of light years in the distance.  We are a compassionate, introspective, resilient people with a tremendous capacity for growth.  We need to pick up the pace, however, if we want to secure a healthier and more hopeful future for our children - and for theirs.

Resources
John Locke, The Second Treatise of Civil Government 1690:
constitution.org/jl/2ndtreat.htm

John Locke, Essay Concerning Human Understanding, Book 2, Chapter 21, Section 51
en.wikipedia.org/wiki/John_Locke#Influence

Text of Declaration of Independence:
earlyamerica.com/earlyamerica/freedom/doi/text.html

nccs.net/index.html

hnn.us/articles/46460.html

freeonlineresearchpapers.com/philosophical-john-locke-view-religious-tolerance

accessmylibrary.com/coms2/summary_0286-143832_ITM

accessmylibrary.com/article-1G1-146481006/some-jewish-reflections-locke.html
http://dekalbbarnews.com/?p=2217#more-2217


Sunday, July 17, 2011

How "Speedy" Does a Speedy Trial Need To Be: Legal Considerations, Budgetary Realities, and Innovative Solutions

So what constitutes a “speedy” trial?  The short answer:  it depends.

As recently as July 14, 2011, the Court of Appeals of Georgia weighed in on this issue in State v. Thaxton, reversing the trial court’s grant of the defendant's motion for discharge and acquittal for violation of his constitutional right to a speedy trial. See State v Thaxton (Ga.App, 2011).

In Thaxton, the defendant was arrested on or about October 39, 2008, on seven counts of dog fighting, cruelty to animals, and possession of more than an ounce of marijuana. He was appointed counsel within days of his arrest (on November 4, 2008).  A month later - on December 3, 2008, Thaxton was released from jail on bond, the conditions of his release including no contact with animals and GPS monitoring, except during his daytime employment.

On January 11, 2010, almost fifteen months after his arrest, Thaxton was indicted on one felony count of possession and three counts of misdemeanor cruelty to animals. A month or so later, Thaxton filed his Motion for Discharge and Acquittal on the basis of a pre-indictment delay.        

In its analysis, the Court of Appeals discussed two types of pre-trial delay, the first of which precedes a criminal defendant’s arrest or indictment and implicates due process guarantees under the Fifth and Fourteenth Amendments.  Jones v State, 284 GA. 320 (1), 667 SE2d 49 (2008).  The second type of pre-trial delay occurs after an arrest or indictment, implicating the Sixth Amendment. Id. at 322 (2); Haisman v. State, 242 Ga. 896, 898 (2), 252 SE2 397 (1979).  Since Thaxton’s motion complained of the 15-month delay that post-dated his arrest, Sixth Amendment standards needed to be applied in resolving his speedy trial claim. Thaxton, supra.

Considerations for determining speedy trial claims under the Sixth Amendment have been outlined by the United States Supreme Court.  See Barker v Wingo, 407 U.S. 514, 92 SC 2182, 33 LE2d 101 (1972); Doggett v. United States, 505 U.S. 647, 112 SC 2868, 120 LE2 520 (1992). In Doggett, Justice Souter delivered the opinion, noting that a defendant's initial burden in triggering a speedy trial analysis (the first prong of the four-factor test outlined in Barker v Wingo) is to demonstrate that the interval between the indictment and trial crosses the line between ordinary delay and delay which is "presumptively prejudicial." A determination that the interval period is not presumptively prejudicial is the death knell of a speedy trial claim.  

If presumptive prejudice is found, then the Court must look at whether the defendant or the government is primarily responsible for the delay, the timeliness of the defendant’s assertion of his right to a speedy trial, and whether the defendant was prejudiced by the delay. Doggett, supra.  It is a careful balancing test.  “No one factor is sufficient or necessary to sustain a finding that that the right to a speedy trial has been denied.” Id.  None of the factors, according to the Thaxton Court, have “talismanic qualities,” but the Court is nonetheless required to make findings of fact and conclusions of law consistent with the balancing test.  Because the Thaxton Court did not did not do so, the case was reversed and remanded for a decision consistent with the Court of Appeals' decision. 

Interestingly enough, a couple of months before Thaxton was decided, The Augusta Chronicle (on February 9, 2011) published an article entitled, “Judges warn of impact of funding cuts,” noting a “failure of the system to provide access to the court,” contributing to judicial backlogs, staff cuts, and speedy trial violations.  The article, which can be found at http://chronicle.augusta.com/latest-news/2011-02-09/judges-warn-impact-funding-cuts, specifically notes that in the Peach State, “backlogs have forced months-long waits for relatively simple matters such as child support hearings.”

Georgia's Chief Justice, Carol Hunstein, reportedly had to lay off seven employees, shut down the Georgia Supreme Court’s law library, relinquish office space - even return a copy machine.  The Court even had to solicit donations from vendors for pens and pencils and used unpaid student interns to keep the office running.  See http://chronicle.augusta.com/latest-news/2011-02-09/judges-warn-impact-funding-cuts.  

These budgetary realities beg certain questions:  When did the right of access to the Courts stop being a priority?  How many children will go without child support while the State wades through backlogs of support cases that it does not have the means of prosecuting?  And how long will victims of violent crimes wait to see their assailants face justice? 

As Chief Judge Hunstein noted in her 2011 State of the Judiciary Address, Georgia cannot afford the $1 billion plus dollars it costs each year to maintain its prison system.  One in every thirteen Georgians is behind bars or on probation or parole – the highest per capital figure in the nation, a figure that prompted Judge Hunstein to question whether Georgia’s mandatory minimum sentences are really making Georgians safer and if so, at what cost? 

Part of the solution, according to Chief Judge Hunstein, is to give Georgia’s judges greater discretion in the courtroom. “Our judges know how to balance punishment with the public safety. And they know that sending a young man to prison for a non-violent crime may not be the best sentence if he will emerge years later with no education, a prison record and little chance of getting a job. As a Texas legislator said, we need these offenders to be taxpayers, not tax burdens.”  http://www.gasupreme.us/press_releases/soj_2011.php.

According to Chief Judge Hunstein, we can save taxpayer dollars and still protect the public by creating and embracing innovative changes to the criminal justice system – as Georgia has been doing with drug courts.  According to Chief Justice Hunstein (who was citing to a recent report by the Georgia Department of Audits), drug courts have resulted in lower sentencing costs (up to 80 percent less than the average daily cost of other traditional sentencing options) and lower recidivism rates. And according to the Georgia Department of Audits, 7% percent of drug court participants reoffended, as compared to 29% of those who simply served time in prison for drug-related offenses.  http://www.gasupreme.us/press_releases/soj_2011.php.

Another type of specialty court, domestic violence courts, can also help conserve taxpayer dollars – in addition to safeguarding the public, savings lives, and reuniting Georgia families.  According to Chief Judge Hunstein, Georgia has the 15th highest rate of domestic violence homicides in the country.  However, programs like that implemented by Clayton County’s Chief Magistrate Judge, Daphne Walker, who began a special calendar for domestic violence cases, have reportedly resulted in a significant reduction in domestic violence homicides.  http://www.gasupreme.us/press_releases/soj_2011.php.

The upshot – budget cuts, case backlogs, and a reduction in number of judges who are able to decide criminal cases will necessarily result in constitutional rights being violated and the public welfare being placed in jeopardy.  So what can members of the legal community do?  Support innovative solutions, like drug and domestic violence courts.  Brainstorm with colleagues about creative solutions yet untapped.  And opt to be a part of the solution by lending a constructive voice to the dialogue.

Wednesday, July 6, 2011

The Media's Attacks on The Casey Anthony Jury Are Disgraceful

The media's assault of the Casey Anthony jury is as repugnant as it is inappropriate. They did their job. They sacraficed time that none of us are guaranteed away from those they love. They did so knowing they were needed by sick children, frail parents, and/or the animals who looked at the door every evening at 5:00 pm expecting them to open it. They did so - knowing they were missing their 20th wedding anniversary or a parent's 90th birthday. They did so because they were called to serve - and directed to follow the law, which, by the way, they absolutely did.

The jury was not authorized to find Ms. Anthony guilty based on possibilty, probability or suspicion.  They were not prepared to render a verdict that might send a woman to her death when there was no direct evidence that she killed the daughter with whom every one of the State's witnesses claimed she had a loving relationship. She may have killed Caylee - but if she did not, my guess is that Caylee would not have wanted her Mother to spend the rest of her days where she is going to spend them. Behind bars or not - she will be imprisoned for the rest of her life. I don't know if that's justice - because only she, Caylee, and God know what happened. But the media or its pundits act as if they are omniscient. They are not. They know as much - and as little - as the rest of us.

Monday, July 4, 2011

Mr. Stengel: We The People Deserve More Credit

We the people are neither as obtuse nor as self-deluded as Time Editor Richard Stengel supposes in his June 23, 2011, piece, “One Document, Under Siege.”

The framers of the Constitution may not have imagined themselves pontificating on a flat screen, sexting over the Internet, or singing the lyrics to “Captivated” by Lady Gaga, but they understood human vulnerability. They understood that the absence of a social contract invited chaos, political repression, even genocide. That their deaths prevented them from making the acquaintance of Joseph Stalin, Adolf Hitler, Ida Amin, Muammar Gadhafi, Saddam Hussein, and Osama Bin Laden does not nullify the promises of the Constitution and Declaration of Independence.

No, the framers did not anticipate the deaths of more than half a million Americans during the Civil War or bear witness to the horrors of Nazi Germany. But they were students of history and they knew of man’s capacity to evil.  They knew of Tomas de Torquemada, Vlad the Impaler, and Ivan the Terrible.  Religious bigotry, torture, and extra-judicial killings existed before them, and the framers knew they would persist in their absence.  The framers' intent was to moderate the possibility that Americans would be susceptible to such iniquity. They provided a framework for "a more perfect” union, one grounded in justice, equality, and religious tolerance – and one wherein the general welfare of its citizens would be promoted and their liberties protected. 

So would the framers think that drones over Libya constitute a violation of Article I, Section 8 of the Constitution?  The answer has nothing to do with whether George Washington ever dreamed that man could fly or use global-positioning satellites to aim a missile.  The question is whether drones over Libya and using global-positioning satellites to aim missiles (and asking the UN Security Council to authorize the US to bomb Libyan tanks and artillery) amounts to a declaration of war and if so, whether our Executive Office usurped congressional authority in declaring it.  The framers, I suspect, would not have needed time to deliberate before responding.