We The People, session vii, Rights of the Accused

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Alternate title: Cops, Courts and Corrections. We see how the Court has incorporated Bill of Rights protections for the accused as burdens on the states' justice systems.

Alternate title: Cops, Courts and Corrections. We see how the Court has incorporated Bill of Rights protections for the accused as burdens on the states' justice systems.

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  • 1. The U.S. Constitution session vii Rights of the Accused
  • 2. Rights of the Accused, or... Cops
  • 3. Rights of the Accused, or... Cops Courts, and
  • 4. Rights of the Accused, or... Corrections
  • 5. Before the Bill of Rights rights in the original Constitution I.9.2-”The Privilege of a Writ of Habeas Corpus shall not be suspended, unless…” I.9.3-”No Bill of Attainder or ex post facto Law…” I.10.1-”No State shall...pass any Bill of Attainder, ex post facto Law…” III.2.3-”The Trial of all Crimes...shall be by Jury, and such Trial shall be held in the State where the said Crimes shall have been committed III.3-the narrow definition of treason next, the Bill of Rights provisions
  • 6. major points of this session I. AM IV-”...unreasonable searches and seizures…” II. AMs V & XIV-”self incrimination...due process...” III. AM VI-trial IV. AM VIII-”...cruel and unusual…”
  • 7. AM IV “...unreasonable searches & seizures…”
  • 8. AM IV “...unreasonable searches & seizures…” Wall Street Journal “Rise of the Warrior Cop,” 7/19/13
  • 9. One morning in the ‘seventies I was riding my bike to school. I was a Social Studies teacher at Indian Hill High School. My habit was to exercise on the way to work and shower at school. So I had my teacher clothes in a knapsack on my back. I was wearing sweats and had a beard. As I turned the corner from Kenwood Road to Shawnee Run Road I was ordered to stop by the loudspeaker on a Madeira police car. “Stop the bike!” The officer got out of his car and began to interrogate me. Needless to say, everything I had learned about rights of the accused came to consciousness pretty quickly. Well, all was soon resolved. He had stopped me because I fitted the description of a “Peeping Tom” who had been tormenting a nearby nursing home. I guess I had an honest face “Stop the Bike!”
  • 10. One morning in the ‘seventies I was riding my bike to school. I was a Social Studies teacher at Indian Hill High School. My habit was to exercise on the way to work and shower at school. So I had my teacher clothes in a knapsack on my back. I was wearing sweats and had a beard. As I turned the corner from Kenwood Road to Shawnee Run Road I was ordered to stop by the loudspeaker on a Madeira police car. “Stop the bike!” The officer got out of his car and began to interrogate me. Needless to say, everything I had learned about rights of the accused came to consciousness pretty quickly. Well, all was soon resolved. He had stopped me because I fitted the description of a “Peeping Tom” who had been tormenting a nearby nursing home. I guess I had an honest face because I satisfied the officer quickly. But I have viewed rights of the accused very differently ever since. “Stop the Bike!”
  • 11. Timely and Affecting Us All!
  • 12. Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
  • 13. “For more than a century [after 1791], [the Fourth Amendment] was a sleeping giant….It was just sixty years ago [in 1975], in Weeks v. United States, that the modern development--indeed the first step towards effectiveness--of [it] began. The Weeks case involved the seizure of personal papers and effects, including letters from a man’s home without any sort of warrant. There were in fact two seizures. The first was by local police officers. They turned the fruits of their efforts over to the federal authorities….” Erwin N. Griswold, Search and Seizure; A Dilemma of the Supreme Court, 1975. pp. 2-3
  • 14. Weeks v. United States, 1914 when Weeks was convicted on the basis of the evidence found in these two searches his counsel appealed successfully to the U.S. Supreme Court the White Court (1910-21) overturned the federal conviction thus creating the exclusionary rule
  • 15. Weeks v. United States, 1914 when Weeks was convicted on the basis of the evidence found in these two searches his counsel appealed successfully to the U.S. Supreme Court the White Court (1910-21) overturned the federal conviction thus creating the exclusionary rule “if letters..can thus be seized...and used as evidence against a citizen...the protection of the Fourth Amendment...is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.”--Mr. Justice Day however, the opinion also stated that the Fourth Amendment only applied to federal searches! Selective incorporation would wait another 47 years Wm Rufus Day 1849-1923
  • 16. Mapp v. Ohio, 1961 facts- On May 03, 1957, police officers in a Cleveland, Ohio suburb received information that a suspect in a bombing case, as well as some illegal betting equipment, might be found in the home of Dollree Mapp. Three officers went to the home and asked for permission to enter, but Mapp refused to admit them without a search warrant. Two officers left, and one remained. Three hours later, the two returned with several other officers. Brandishing a piece of paper, they broke in the door. Mapp asked to see the “warrant” and took it from an officer, putting it in her dress. The officers struggled with Mapp and took the piece of paper away from her. They handcuffed her for being “belligerent.” They did not find the bombing suspect nor the gambling equipment. They did, however, find pornographic material in a trunk in her basement. She was arrested, prosecuted, and found guilty for possession of pornographic material question-Were the confiscated materials protected by the First Amendment? (May evidence obtained through a search in violation of the Fourth Amendment be admitted in a state criminal proceeding?) oyez.org
  • 17. Mapp v. Ohio, 1961 facts- On May 03, 1957, police officers in a Cleveland, Ohio suburb received information that a suspect in a bombing case, as well as some illegal betting equipment, might be found in the home of Dollree Mapp. Three officers went to the home and asked for permission to enter, but Mapp refused to admit them without a search warrant. Two officers left, and one remained. Three hours later, the two returned with several other officers. Brandishing a piece of paper, they broke in the door. Mapp asked to see the “warrant” and took it from an officer, putting it in her dress. The officers struggled with Mapp and took the piece of paper away from her. They handcuffed her for being “belligerent.” They did not find the bombing suspect nor the gambling equipment. They did, however, find pornographic material in a trunk in her basement. She was arrested, prosecuted, and found guilty for possession of pornographic material question-Were the confiscated materials protected by the First Amendment? (May evidence obtained through a search in violation of the Fourth Amendment be admitted in a state criminal proceeding?) decision- The Court brushed aside the First Amendment issue and declared that "all evidence obtained by searches and seizures in violation of the Constitution is, by [the Fourth Amendment], inadmissible in a state court." Mapp had been convicted on the basis of illegally obtained evidence significance-This was an historic -- and controversial -- decision. It placed the requirement of excluding illegally obtained evidence from court at all levels of the government. The decision launched the Court on a troubled course of determining how and when to apply the exclusionary rule. oyez.org
  • 18. “The result has been--as in so many other areas in recent years--a great torrent of litigation. This is evidenced by the entries of decisions under the Fourth Amendment in the United States Code Annotated. In the latest bound volume, these occupy 683 double-columned pages, classified under 1,222 different categories…. Over seven-thousand decisions are abstracted, virtually all of which have been decided within the past fifteen years [1960-75]. “The Mapp decision required a complete change in the outlook and practices of state and local police. Prior to the Mapp case-- as the Weeks decision itself illustrates--search warrants were virtually unknown in city police departments.” Griswold, pp. 7-8
  • 19. Terry v. Ohio, 1967 facts- Terry and two other men were observed by a plain clothes policeman in what the officer believed to be "casing a job, a stick-up." The officer stopped and frisked the three men, and found weapons on two of them. Terry was convicted of carrying a concealed weapon and sentenced to three years in jail question- Was the search and seizure of Terry and the other men in violation of the Fourth Amendment? oyez.org
  • 20. Terry v. Ohio, 1967 facts- Terry and two other men were observed by a plain clothes policeman in what the officer believed to be "casing a job, a stick-up." The officer stopped and frisked the three men, and found weapons on two of them. Terry was convicted of carrying a concealed weapon and sentenced to three years in jail question- Was the search and seizure of Terry and the other men in violation of the Fourth Amendment? decision- the Court held that the search undertaken by the officer was reasonable under the Fourth Amendment and that the weapons seized could be introduced into evidence against Terry. Attempting to focus narrowly on the facts of this particular case, the Court found that the officer acted on more than a "hunch" and that "a reasonably prudent man would have been warranted in believing [Terry] was armed and thus presented a threat to the officer's safety while he was investigating his suspicious behavior." The Court found that the searches undertaken were limited in scope and designed to protect the officer's safety incident to the investigation significance- Terry created a rule, also known as the Stop-and-Frisk Rule, which would govern police work unchallenged until this summer oyez.org
  • 21. Note-the Amendment prohibits “unreasonable,” not “unwarranted” searches and seizures A search pursuant to a warrant is, naturally, considered reasonable. It may, however, be violative of other constitutionally protected rights of the accused, e.g., if it is conducted in a brutal manner. But, as in the case of Terry, a search of a suspect’s person, without a warrant may be held to be reasonable and thus lawful. So the Court had to consider all manner of searches: car searches, students’locker searches, &c. A key factor was the Court’s opinion as to whether the petitioners had a “reasonable expectation of privacy” where the search took place. jbp
  • 22. Bloomberg vs. “Stop & Frisk” “The debate over "stop-and-frisk" police tactics is front and center in New York City and elsewhere in the nation. This policy goes to our very definition of community, leading to a fundamental question: Are these tactics intended to build or bust trust in a community? “If stop-and-frisk is to be used, then police departments must build these approaches based on a simple but profound principle: the police are there to serve the community, even help build community. This will require a shift in orientation and practice for some departments and their officers. But such steps are vital to the health of communities. “A compelling video about a high school senior from Brooklyn's East Flatbush neighborhood helps make this point. He tells of his experiences with New York City police who have now stopped and frisked him at least seven times. The first time, he was 13 years old. He had walked one block from his home to his friend's house so they could walk to school together. “The police saw him standing in front of his friend's house and proceeded to look through his book bag, rough him up, search his pockets and force him to spread his legs….” Richard C. Harwood, “Stop-and-Frisk: Build Trust, not Bust It.” 8/23/13, on Huffington Post.com
  • 23. United States v. Robinson, 1973 facts- A police officer pulled over and arrested Robinson for operating an automobile without a valid permit. The officer then frisked Robinson and discovered a crumpled cigarette package containing fourteen vials of heroin in his pocket question- Did the officer’s search violate the Fourth Amendment?
  • 24. United States v. Robinson, 1973 facts- A police officer pulled over and arresting Robinson for operating an automobile without a valid permit. The officer then frisked Robinson and discovered a crumpled cigarette package containing fourteen vials of heroin in his pocket question- Did the officer’s search violate the Fourth Amendment? decision- The Court upheld the search. Distinguishing between searches done to discover concealed weapons and those conducted coextensive with an arrest, Justice Rehnquist argued since the officer did not conduct the search in an abusive or extreme manner, and because he acted consistent with the authority vested in a police officer when making an arrest, his actions were legitimate significance- Robinson created a rule that a full body search, incident to a lawful arrest does not require a warrant oyez.org
  • 25. “Fruit of the Poisonous Tree” is a legal metaphor...used to describe evidence that is obtained illegally. The logic of the terminology is that if the source of the evidence or evidence itself (the "tree") is tainted, then anything gained from it (the "fruit") is tainted as well…. Such evidence is not generally admissible in court…. The doctrine is an extension of the exclusionary rule, which, subject to some exceptions, prevents evidence obtained in violation of the Fourth Amendment from being admitted in a criminal trial. Like the exclusionary rule, the fruit of the poisonous tree doctrine is intended to deter police from using illegal means to obtain evidence. The doctrine is subject to four main exceptions. The tainted evidence is admissible if: 1. it was discovered in part as a result of an independent, untainted source; or 2. it would inevitably have been discovered despite the tainted source; or 3. the chain of causation between the illegal action and the tainted evidence is too attenuated; or 4. the search warrant not based on probable cause was executed by government agents in good faith (called the good-faith exception)…. . Wikipedia
  • 26. Search & Seizure of Speech--Katz v. United States, 1967 Facts-Charles Katz used a public pay phone booth to transmit illegal gambling wagers from Los Angeles to Miami and Boston. Unbeknownst to Katz, the FBI was recording his conversations via an electronic eavesdropping device attached to the exterior of the phone booth. Katz was convicted based on these recordings. He challenged his conviction, arguing that the recordings were obtained in violation of his Fourth Amendment rights. The Court of Appeals sided with the FBI because there was no physical intrusion into the phone booth itself. The Supreme Court granted certiorari, indicating it may be interested in reviewing the case Questions- Does the right to privacy extend to telephone booths and other public places? is a physical intrusion necessary to constitute a search? is the case constitutional?
  • 27. Search & Seizure of Speech--Katz v. United States, 1967 Facts-Charles Katz used a public pay phone booth to transmit illegal gambling wagers from Los Angeles to Miami and Boston. Unbeknownst to Katz, the FBI was recording his conversations via an electronic eavesdropping device attached to the exterior of the phone booth. Katz was convicted based on these recordings. He challenged his conviction, arguing that the recordings were obtained in violation of his Fourth Amendment rights. The Court of Appeals sided with the FBI because there was no physical intrusion into the phone booth itself. The Supreme Court granted certiorari, indicating it may be interested in reviewing the case Questions- Does the right to privacy extend to telephone booths and other public places? is a physical intrusion necessary to constitute a search? is the case constitutional? Decision-in Olmstead v. U.S. (1928), the ruling wiretap case precedent, Chief Justice Taft had written: “there was no searching, there was no seizure here, there was no entry...” The Warren Court overruled this precedent (7-1) with Justice Stewart writing the decision: "The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment." Regardless of the location, a conversation is protected from unreasonable search and seizure under the Fourth Amendment if it is made with a “reasonable expectation of privacy”.
  • 28. "We sleep safely in our beds because rough men stand ready in the night to visit violence on those who would harm us."--misattributed to George Orwell Actual source: Quote Investigator found the earliest known appearance in a 1993 Washington Times essay by Richard Grenier: "As George Orwell pointed out, people sleep peacefully in their beds at night only because rough men stand ready to do violence on their behalf." The absence of quotation marks indicates Grenier was using his own words to convey his interpretation of Orwell's opinion, as seen in citations below: In his 1945 "Notes on Nationalism", Orwell wrote that it was "grossly obvious" that "Those who ʻabjureʼ violence can do so only because others are committing violence on their behalf." In an essay on Rudyard Kipling, Orwell cited Kipling's phrase "making mock of uniforms that guard you while you sleep" (Kipling, Tommy), and further noted that Kipling's "grasp of function, of who protects whom, is very sound. He sees clearly that men can be highly civilized only while other men, inevitably less civilized, are there to guard and feed them." (1942) Wall Street Journal “Rise of the Warrior Cop,” 7/19/13
  • 29. In the ‘60s the civil rights movement produced a gulf between those demanding change and the armed forces of order. As a Government teacher I took advantage of a program created by the LEAA* to ride with the Cincinnati Police Department. My Experience with Police Ride-Alongs ______________ *The Law Enforcement Assistance Administration (LEAA) was a U.S. federal agency within the U.S. Dept. of Justice. It administered federal funding to state and local law enforcement agencies, and funded educational programs, research, state planning agencies, and local crime initiatives. The LEAA was established by the Omnibus Crime Control and Safe Streets Act of 1968 and was abolished in 1982.
  • 30. In the ‘60s the civil rights movement produced a gulf between those demanding change and the armed forces of order. As a Government teacher I took advantage of a program created by the LEAA* to ride with the Cincinnati Police Department. As I experienced on both trips, most of the four-hour shift was dull as dishwater. In just this brief exposure I was able to appreciate what a difficult job these officers have. My one and only scary experience reminded me of how my flight instructor at Pensacola described naval aviation: hours of boredom punctuated by moments of stark terror. Bottom line--not a job for the faint of heart. I wish every citizen could have this experience. jbp My Experience with Police Ride-Alongs
  • 31. Wall Street Journal “Rise of the Warrior Cop,” 7/19/13
  • 32. Florida v. Jardines, 2013 facts- On November 3, 2006, the Miami-Dade Police Department received an unverified ""crime stoppers"" tip that the home of Joelis Jardines was being used to grow marijuana. On December 6, 2006, two detectives, along with a trained drug detection dog, approached the residence. The dog handler accompanied the dog to the front door of the home. The dog signaled that it detected the scent of narcotics. The detective also personally smelled marijuana. The detective prepared an affidavit and applied for a search warrant, which was issued. A search confirmed that marijuana was being grown inside the home. Jardines was arrested and charged with trafficking cannabis. Jardines moved to suppress the evidence seized at his home on the theory that the drug dog's sniff was an impermissible search under the Fourth Amendment and that all subsequent evidence was fruit of the poisonous tree. The trial court conducted an evidentiary hearing and subsequently ruled to suppress the evidence. The state appealed the suppression ruling and the state appellate court reversed, concluding that no illegal search had occurred since the officer had the right to go up to the defendant's front door and that a warrant was not necessary for the drug dog’s sniff. The Florida Supreme Court reversed the appellate court's decision and concluded that the dog's sniff was a substantial government intrusion into the sanctity of the home and constituted a search within the meaning of the Fourth Amendment. The state of Florida appealed the Florida Supreme Court's decision. oyez.org
  • 33. Florida v. Jardines, 2013 question- Is a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog a Fourth Amendment search requiring probable cause? decision- Yes
  • 34. Florida v. Jardines, 2013 question- Is a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog a Fourth Amendment search requiring probable cause? decision- Yes Justice Antonin Scalia delivered a 5-4 opinion affirming the Florida Supreme Court’s decision. The Court held that the front porch of a home is part of the home itself for Fourth Amendment purposes. Typically, ordinary citizens are invited to enter onto the porch, either explicitly or implicitly, to communicate with the house’s occupants. Police officers, however, cannot go beyond the scope of that invitation. Entering a person’s porch for the purposes of conducting a search requires a broader license than the one commonly given to the general public. Without such a license, the police officers were conducting an unlawful search in violation of the Fourth Amendment oyez.org Ideology isn’t always decisive as to how the Justices vote--jbp
  • 35. AMs V & XIV “...self incrimination ...due process”
  • 36. Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, 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; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
  • 37. “The Fifth Amendment is almost synonymous with the right against compulsory self-incrimination. One who “pleads the Fifth” is not insisting on a grand jury indictment, freedom from double jeopardy, or just compensation for property taken by the government---all safeguarded by the same amendment. He is saying that he will not reply to an official query because his truthful answer might expose him to criminal jeopardy. He seems to be saying that he has something to hide, making the Fifth Amendment appear to be a protection of the guilty. Without doubt the right against self-incrimination is the most misunderstood, unrespected, and controversial of all rights.” Leonard W. Levy, Origins of the Fifth Amendment; The Right Against Self-Incrimination. 2nd ed. 1986
  • 38. some unpopular claimants of the “Fifth” 1950‘s-the “fifth amendment communists” of the HUAC era
  • 39. some unpopular claimants of the “Fifth” 1950‘s-the “fifth amendment communists” of the HUAC era 1951-53-the mobsters, here, Frank Costello, grilled by the Kefauver Committee on organized crime
  • 40. some unpopular claimants of the “Fifth” 1950‘s-the “fifth amendment communists” of the HUAC era 1951-53-the mobsters, here, Frank Costello, grilled by the Kefauver Committee on organized crime May 22, 2013-IRS Undersecretary Lois Lerner when asked about IRS targeting of conservative 501( c)-tax exempt organizations
  • 41. “...in Rogers v. Richmond [1961] Justice Frankfurter spoke for six other Justices in writing: “Our decisions under that [Fourteenth] Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system—a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charges against an accused out of his own mouth.” CRS/LII Annotated Constitution, p. 1329 as cited at www.law.cornell .edu/anncon/
  • 42. This rather mysterious phrase appears throughout the discussions in both these two sources, Levy and the Annotated Constitution. It is at the heart of why forced confessions are rejected in our modern justice system. We are all familiar with the ecclesiastical courts which used the inquisitorial system, most famously in Spain. The suspect was brought before the inquisitors, put under oath, and compelled to answer questions--not infrequently accompanied by torture. England, during the Wars of Religion, late sixteenth to mid- seventeenth centuries, also persecuted religious non-conformists. We’ve already reviewed the case of John Lilburne. The victors in the English Civil War rejected inquisitorial courts like the infamous Court of the Star Chamber. jbp “...an accusatorial and not an inquisitorial system…” ?
  • 43. The Star Chamber document showing King Henry VII sitting in the Star Chamber-- so-called for the stars painted on its ceiling
  • 44. The Star Chamber The Star Chamber (Latin: Camera stellata) was an English court of law that sat at the royal Palace of Westminster from the late 15th century until 1641. It was made up of Privy Councillors, as well as common-law judges and supplemented the activities of the common- law and equity courts in both civil and criminal matters. The court was set up to ensure the fair enforcement of laws against prominent people, those so powerful that ordinary courts would never convict them of their crimes. Court sessions were held in secret, with no indictments, and no witnesses. Evidence was presented in writing. Over time it evolved into a political weapon, a symbol of the misuse and abuse of power by the English monarchy and courts. Wikipedia
  • 45. A “Star Chamber” Proceeding In modern usage, legal or administrative bodies with strict, arbitrary rulings and secretive proceedings are sometimes called, metaphorically or poetically, star chambers. This is a pejorative term and intended to cast doubt on the legitimacy of the proceedings. The inherent lack of objectivity of politically motivated charges has led to substantial reforms in English law in most jurisdictions since that time. Ibid. In addition to the inquisitorial forcing of self-incrimination, the Star Chamber violated all sorts of procedural due process requirements which the Sixth Amendment spells out in detail. The trial was neither speedy nor public. There was no right to confront hostile witnesses nor procure friendly ones. jbp
  • 46. Miranda
  • 47. Miranda
  • 48. Miranda v. Arizona (1967) 1960’s-a movement began providing poor defendants legal aid, the work of various state bar associations 1964-LBJ’s campaign promised a Great Society which would include a federal Legal Services Corporation 1963-Ernesto Miranda was arrested for and confessed to the rape of an 18-year- old girl. The circumstances of this confession formed the legal issue of this landmark case . It touched both the 5th Amendment self-incrimination clause and the 6th Amendment right to an attorney.
  • 49. Miranda v. Arizona (1967) 1960’s-a movement began providing poor defendants legal aid, the work of various state bar associations 1964-LBJ’s campaign promised a Great Society which would include a federal Legal Services Corporation 1963-Ernesto Miranda was arrested for and confessed to the rape of an 18-year- old girl. The circumstances of this confession formed the legal issue of this landmark case . It touched both the 5th Amendment self-incrimination clause and the 6th Amendment right to an attorney. 1967- Chief Justice Warren wrote the (5-4) decision: The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.
  • 50. AM VI trial
  • 51. Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
  • 52. Justice delayed is justice denied- The right to a speedy trial may be derived from a provision of Magna Carta and it was a right so interpreted by Coke. Much the same language was incorporated.into the Virginia Declaration of Rights of 1776 and from there into the Sixth Amendment. --Annotated Constitution, p. 1401
  • 53. Between common law traditions, the abhorrence of Star Chamber proceedings, and administrative need to clear the dockets, there has been little need for the Supreme Court to rule on this right. The right to a writ of habeas corpus (I,9,2) ensures that our prisons do not lock people up, throw away the key and forget about them as in other times and places. [Much as we might like to in some cases]. The case proved otherwise in the case of the right to counsel. jbp
  • 54. Gideon v. Wainwright (1963) 1932-in Powell v. AL, the famous Scottsboro Boys case, the court had ruled that States had to provide counsel to indigent defendants in “special circumstances,” thus beginning the process of incorporation. This was a capital case
  • 55. Gideon v. Wainwright (1963) 1932-in Powell v. AL, the famous Scottsboro Boys case, the court had ruled that States had to provide counsel to indigent defendants in “special circumstances,” thus beginning the process of incorporation. This was a capital case The angry white crowd waiting to see “justice” done to the “boys” accused of raping two white girls
  • 56. Gideon v. Wainwright (1963) 1932-in Powell v. AL, the famous Scottsboro Boys case, the court had ruled that States had to provide counsel to indigent defendants in “special circumstances,” thus beginning the process of incorporation. This was a capital case 1942-in Betts v. Brady, a non-capital case, the USSC held that “unless there were special circumstances like illiteracy, stupidity or being in an especially complicated trial, there was no need for a court-appointed attorney.” 1961-Between midnight and 8:00 a.m. on June 3...a burglary occurred at the Bay Harbor Pool Room in Panama City, Florida. Someone broke a door, smashed a cigarette machine and a record player, and stole money from a cash register. Later that day, a witness reported that he had seen Clarence Earl Gideon in the poolroom at around 5:30 that morning, leaving with a wine bottle and money in his pockets. Based on this accusation alone, the police arrested Gideon and charged him with breaking and entering with intent to commit petty larceny. Gideon appeared in court alone as he was too poor to afford counsel-Wikipedia the stage was set for one of the most amazing stories in judicial history
  • 57. Clarence Earl Gideon His father died when he was three. Gideon quit school after eighth grade and ran away from home, living as a homeless drifter. By the time he was sixteen, Gideon had begun compiling a petty crime profile. Gideon spent a year in a reformatory for burglary before finding work at a shoe factory. At age 18, he was arrested in Missouri and charged with robbery, burglary, and larceny. Gideon was sentenced to 10 years but released after three, in 1932. Gideon spent most of the next three decades in poverty. He served some more prison terms at Leavenworth, Kansas for stealing government property; in Missouri for stealing, larceny and escape; and in Texas for theft. Between his prison terms Gideon was married four times. The first marriage ended quickly, but the fourth ... (in October, 1955) lasted. They settled in Orange, Texas, in the mid-1950s, and Gideon found irregular work as a tugboat laborer and bartender until he was bedridden by tuberculosis for 3 years. In addition to three children that Ruth already had, Gideon and Ruth had three children, born in 1956, 1957 and 1959: … the third after the family had moved to Panama City, Florida. The six children were later removed by welfare authorities. Gideon started working as an electrician in Florida, but began gambling for money because of his low wages. He did not serve any more time in jail until 1961. Wikipedia
  • 58. Gideon v. Wainwright (1963) 1961-Between midnight and 8:00 a.m. on June 3, 1961, a burglary occurred... Gideon appeared in court alone as he was too poor to afford counsel-Wikipedia The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case. GIDEON: The United States Supreme Court says I am entitled to be represented by Counsel. The Florida court declined to appoint counsel for Gideon. As a result, he was forced to act as his own counsel and conduct his own defense in court, emphasizing his innocence in the case. At the conclusion of the trial the jury returned a guilty verdict. The court sentenced Gideon to serve five years in the state prison From his prison cell at Florida State Prison, making use of the prison library and writing in pencil on prison stationery, Gideon appealed to the United States Supreme Court in a suit against the Secretary to the Florida Department of Corrections...Louie L. Wainwright.... Gideon argued in his appeal that he had been denied counsel and, therefore, his Sixth Amendment rights, as applied to the states by the Fourteenth Amendment, had been violated
  • 59. Gideon v. Wainwright (1963) 1961-Between midnight and 8:00 a.m. on June 3, 1961, a burglary occurred... Gideon appeared in court alone as he was too poor to afford counsel-Wikipedia The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case. GIDEON: The United States Supreme Court says I am entitled to be represented by Counsel. The Florida court declined to appoint counsel for Gideon. As a result, he was forced to act as his own counsel and conduct his own defense in court, emphasizing his innocence in the case. At the conclusion of the trial the jury returned a guilty verdict. The court sentenced Gideon to serve five years in the state prison From his prison cell at Florida State Prison, making use of the prison library and writing in pencil on prison stationery, Gideon appealed to the United States Supreme Court in a suit against the Secretary to the Florida Department of Corrections...Louie L. Wainwright.... Gideon argued in his appeal that he had been denied counsel and, therefore, his Sixth Amendment rights, as applied to the states by the Fourteenth Amendment, had been violated The Supreme Court assigned Gideon a prominent Washington, D.C. attorney, future Supreme Court justice Abe Fortas
  • 60. Gideon v. Wainwright (1963) The Supreme Court assigned Gideon a prominent Washington, D.C. attorney, future Supreme Court justice Abe Fortas 1963-The Supreme Court's decision was...delivered by Justice Hugo Black. Three concurring opinions were written by Justices Clark, Douglas and Harlan…..Gideon v. Wainwright overruled Betts v. Brady, instead holding that the assistance of counsel, if desired by a defendant who could not afford to hire counsel, was a fundamental right under the United States Constitution, binding on the states, and essential for a fair trial and due process of law The Supreme Court remanded the case to the Supreme Court of Florida for "further action not inconsistent with this decision." Gideon v. Wainwright was one of a series of Supreme Court decisions that confirmed the right of defendants in criminal proceedings, upon request, to have counsel appointed both during trial and on appeal. In the subsequent cases of Massiah v. United States, 377 U.S. 201 (1964) and Miranda v. Arizona 384 U.S. 436 (1966), the Supreme Court further extended the rule to apply even during police interrogation About 2000 individuals that had been convicted in Florida alone were freed as a result of the Gideon decision. The decision did not result directly in Gideon being freed; instead, he got a new trial with the appointment of defense counsel at the government's expense
  • 61. AM VIII “...cruel & unusual…”
  • 62. Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
  • 63. First, some more Law 101 felony vs misdemeanor-a felonious crime, typically one involving violence, regarded as more serious than a misdemeanor, for which the statutory punishment is incarceration for a year or longer (or capital punishment!) Misdemeanor crimes receive lesser sentences or even alternative punishment such as community service or probation prison vs jail-in U.S. law, jails are places of detention for all prisoners awaiting trial. If they are convicted of a felony, they go to prison; of a misdemeanor, they are remanded to jail to serve the rest of their sentence (total time served, less than a year) jbp
  • 64. Why We Punish-traditional views retribution- ‫ׁן‬ֵ‫ש‬ְּ‫ב‬ ‫ׁן‬ֵ‫ש‬ ‫ִן‬‫י‬ַ‫ע‬ְּ‫ב‬ ‫ִן‬‫י‬ַ‫ע‬(ayin tachat ayin-”An eye for an eye”)
  • 65. Why We Punish-traditional views retribution- ‫ׁן‬ֵ‫ש‬ְּ‫ב‬ ‫ׁן‬ֵ‫ש‬ ‫ִן‬‫י‬ַ‫ע‬ְּ‫ב‬ ‫ִן‬‫י‬ַ‫ע‬(ayin tachat ayin-”An eye for an eye”) deterrence-”I’m going to make an example of you. You won’t be doing that again!”or “Others won’t do it”
  • 66. Why We Punish-traditional views retribution- ‫ׁן‬ֵ‫ש‬ְּ‫ב‬ ‫ׁן‬ֵ‫ש‬ ‫ִן‬‫י‬ַ‫ע‬ְּ‫ב‬ ‫ִן‬‫י‬ַ‫ע‬(ayin tachat ayin-”An eye for an eye”) deterrence-”I’m going to make an example of you. You won’t be doing that again!”or “Others won’t do it” rehabilitation-19th century penitentiaries, some time to contemplate your sins and make a firm resolution to mend your ways
  • 67. Why We Punish-traditional views retribution- ‫ׁן‬ֵ‫ש‬ְּ‫ב‬ ‫ׁן‬ֵ‫ש‬ ‫ִן‬‫י‬ַ‫ע‬ְּ‫ב‬ ‫ִן‬‫י‬ַ‫ע‬(ayin tachat ayin-”An eye for an eye”) deterrence-”I’m going to make an example of you. You won’t be doing that again!”or “Others won’t do it” rehabilitation-19th century penitentiaries, some time to contemplate your sins and make a firm resolution to mend your ways incapacitation-take you out of circulation: capital punishment (permanently)
  • 68. Why We Punish-traditional views retribution- ‫ׁן‬ֵ‫ש‬ְּ‫ב‬ ‫ׁן‬ֵ‫ש‬ ‫ִן‬‫י‬ַ‫ע‬ְּ‫ב‬ ‫ִן‬‫י‬ַ‫ע‬(ayin tachat ayin-”An eye for an eye”) deterrence-”I’m going to make an example of you. You won’t be doing that again!”or “Others won’t do it” rehabilitation-19th century penitentiaries, some time to contemplate your sins and make a firm resolution to mend your ways incapacitation-take you out of circulation: capital punishment (permanently), or incarceration (temporarily)
  • 69. Prison Reform Prisons have only been used as the primary punishment for criminal acts in the last couple of centuries. Far more common earlier were various types of corporal punishment, public humiliation, penal bondage, and banishment for more severe offenses, as well as capital punishment. Wikipedia ___________ * data supplied by China, highly suspect-jbp
  • 70. Eastern State Penitentiary, Phila, PA 1829-1971
  • 71. Cincinnati’s Contribution to Prison Reform
  • 72. Cincinnati’s Contribution to Prison Reform
  • 73. Cincinnati’s Contribution to Prison Reform
  • 74. Cincinnati’s Contribution to Prison Reform
  • 75. 1869-after the Civil War POW Horror stories, both North and South, reformers took a hard look at prison conditions. Cincinnati built its world- famous Work House in Camp Washington 1870-Cincinnati hosted a “National Congress” which wrote a reform agenda 1874-Kenney’s Illustrated Cincinnati lists 4,175 “adult criminals convicted of minor offenses”-daily average, 436 at an average cost of 40¢. About 1/4th were females. Annual expenses $75, 322.78. Services of prisoners let to contractors yielded $16,287.68 my Work House memories 1980-listed on the National Register 1990-demolished & replaced by River City Correctional Center which treats felons for chemical dependency
  • 76. The Hamilton County River City Correctional Center (RCCC) is located at 3220 Colerain Avenue, the former site of the Community Correctional Institution or "Workhouse" in Camp Washington. RCCC is one of eighteen Community Based Correctional Facilities (CBCF's) presently operating in the State of Ohio. The CBCF is a local alternative to prison with the primary purpose of rehabilitation for non-violent, felony offenders. The River City Correctional Center can accomodate 220 residents, consisting of 165 male and 55 females. The average length of stay is five months, depending upon the treatment needs of the individual. The maximum length of stay is six months. The Hamilton County River City Correctional Center is governed by a Facility Governing Board (FGB). Two thirds of the board is appointed by the Hamilton County Court of Common Pleas and one-third is appointed by the Hamilton County Board of Commissioners. The FGB makes certain the facility meets the highest possible standards in safety, security and effectiveness. RCCC is staffed by over 100 full and part time employees who provide coverage 24-hours a day, seven days a week to provide security and treatment to residents. Residents may receive a variety of services during their stay at River City, including chemical dependency treatment, remedial education and employment assistance. The goal of treatment is to assist residents in recognizing and overcoming their substance abuse dependency, criminal thinking and life skill deficiencies. http://www.hamilton-co.org/hc/rccc_default.asp
  • 77. Gary Gilmore fulfills his death wish...
  • 78. Gary Gilmore fulfills his death wish... 1972-death row inmates nationwide received good news in Furman v. GA. The Court held (5-4) the death penalty unconstitutional because it was “unusual.” Potter Stewart, in the controlling opinion: "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to death, it is the constitutionally impermissible basis of race.”-Wikipedia All 4 Nixon appointees ( Burger, Blackmun, Powell, Rehnquist) dissented the States were compelled to re-examine their statutes & procedures 1975-in Gregg v. GA, the Court further refined the Furman rule that if the procedure for sentencing was rational and not racially discriminatory, executions could go forward 1977-at his own demand, Gilmore became the first person executed in the U.S. in ten years. He got his 15 minutes of fame
  • 79. Gary Gilmore fulfills his death wish...
  • 80. Gary Gilmore fulfills his death wish... giving a goodbye wave to the firing squad
  • 81. The humanizing of War! You might as well talk of the humanizing of Hell...As if war could be civilized!--British First Sea Lord, Jackie Fisher Admiral of the Fleet John Arbuthnot "Jacky" Fisher, 1st Baron Fisher GCB, OM, GCVO (1841 – 1920)
  • 82. The humanizing of War! You might as well talk of the humanizing of Hell...As if war could be civilized!--British First Sea Lord, Jackie Fisher waterboarding is the current cause cèlébre regarding “cruel and unusual” its recorded use dates back to the Spanish inquisition its use by American soldiers in the Philippine insurrection (1901-04) helped rouse a domestic opposition
  • 83. The humanizing of War! You might as well talk of the humanizing of Hell...As if war could be civilized!--British First Sea Lord, Jackie Fisher waterboarding is the current cause cèlébre regarding “cruel and unusual” its recorded use dates back to the Spanish inquisition its use by American soldiers in the Philippine insurrection (1901-04) helped rouse a domestic opposition
  • 84. The humanizing of War! You might as well talk of the humanizing of Hell...As if war could be civilized!--British First Sea Lord, Jackie Fisher waterboarding is the current cause cèlébre regarding “cruel and unusual” its recorded use dates back to the Spanish inquisition its use by American soldiers in the Philippine insurrection (1901-04) helped rouse a domestic opposition the Wickersham report (1931) said that it was part of the unacceptable interrogation techniques of American police, known as the “third degree” Courts of that period accepted confessions obtained by torture 2007-when its use by the CIA in the war on terror came to light, a flurry of legalizing and renditions tried to make the issue go away 2008-one of the current president’s appeals and subsequent public positions was his opposition to its use
  • 85. One element which unifies all these different specific rights of the criminally accused is clear. There is a tension between two alternative approaches which some have called the culture wars. There is the newer sensitivity which defends those who stand accused. “Better that ten guilty go free, than that one innocent should suffer.”
  • 86. One element which unifies all these different specific rights of the criminally accused is clear. There is a tension between two alternative approaches which some have called the culture wars. There is the newer sensitivity which defends those who stand accused. “Better that ten guilty go free, than that one innocent should suffer.” This has produced a conservative reaction. What about protecting the victims of crime!
  • 87. One element which unifies all these different specific rights of the criminally accused is clear. There is a tension between two alternative approaches which some have called the culture wars. There is the newer sensitivity which defends those who stand accused. “Better that ten guilty go free, than that one innocent should suffer.” This has produced a conservative reaction. What about protecting the victims of crime! Our court system, culminating in the U.S. Supreme Court, strives to strike a just balance. And the public mood, reflected in Presidential and Senatorial elections, pushes the composition one way, then the other. “And so it goes…” Our final session will conclude this constitutional history. We will examine how change at so many levels has tested “the supreme law of the land” (VI,2). And, that’s another story...