More on cages and due process

In response to my post Defendants, cages and due process, I received the following e-mail from Sabrina Carliss:

Paul, you had an Aug 9th article titled 'Defendants, Cages and Due Process' where you spoke about the process of placing defendants behind bars or reverse cages where they testify from another room. Since it seems you're adamantly against this practice, how would you propose to deal with future alleged victims of sexual assault deal with the trials? Seems like this practice is rather kind to those assaulted (if the alleged is truly guilty). Where did you find the info for the last paragraph? 

Well, Ms. Carliss, my solution is quite simple - the complaining witness takes a seat in the witness stand and answers questions on direct from the prosecutor and on cross from the defense attorney. The Sixth Amendment guarantees a defendant the right to confront the witnesses against him and I believe that the right to confront is severely diluted when a witness is allowed to testify from another room.

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 defence. -- Sixth Amendment

My idea may sound harsh but my job is to defend the Constitution. The Bill of Rights doesn't make exceptions (and neither should we) for different crimes. When a person goes on trial, the state is looking to take away that person's life, liberty or property. If we're going to allow the state to do that then we damn well better guarantee that the defendant's rights are protected and that he be afforded all of his rights under due process of law.

By allowing a witness to testify on camera from another room we are telling the jury that the defendant is a bad person. We are telling the jury that it's okay to ignore the presumption of innocence. We are telling the jury it's okay to ignore the Bill of Rights.

Those who seek to tear down our constitutional protections like to twist the question around and ask what we would want if it was our child on the stand. The real question, however, is what would you want if you were the one on trial?

Court nixes no video policy

Lance Baxter, the presiding judge in of Court Court No. 3 in Collin County, Texas, has had an interesting, to say the least, policy regarding the playing of DWI videos at trial. They weren't.

Judge Baxter did not allow the prosecution or the defense to show the video during trial. They could talk about it. They could ask the officers involved, or other witnesses, about it. They could refer to it during their closing argument. But they could not pop it into the VCR or DVD player and hit play.

You see, Judge Baxter, believed that the only proper time for the jury to see the video was during their deliberations. The six folks in the box weren't allowed to view the video within the context of the trial. They were expected to remember the points the defense made while cross-examining the officers involved.

In his first point of error, appellant contends the trial court's ruling forbidding the playing of exhibits during trial, and more broadly its policy on video evidence, constitutes an abuse of discretion, deprived him of the right to effective assistance of counsel under the Sixth Amendment and Article I, section 10 of the Texas Constitution, and deprived him of his right to present a defense and confront the witnesses against him in violation of the Sixth and Fourteenth Amendments. Appellant concedes the trial court has the discretion to set reasonable restrictions on how video evidence is published to the jury, but he contends a blanket policy prohibiting the use of such evidence during direct and cross-examination without regard to the individual facts and circumstances of a case is an abuse of discretion. Appellant contends the ruling excluding videotape evidence harmed him by eliminating his counsel's ability to present evidence in a manner that allows the jury to assimilate it as the trial progresses. He contends it is unreasonable to expect jurors to remember details developed during examination and cross-examination about recordings they have not seen or heard, and diminishes his ability to effectively cross-examine witnesses by removing the jurors' ability to actually see the impeachment evidence. In the event the jury does choose to examine the videotape during its deliberations, appellant contends the failure to present it contemporaneously with the testimony discussing it makes it more difficult for the jury to match up the video with the questions asked because the lawyers are unable to show the jury what is being referenced. Appellant contends his constitutional rights are violated by a ruling that deprives his counsel of the ability to show properly admitted evidence to the jury, explain its significance, use it to support opinions that appellant was not intoxicated, and to confront and impeach the State's witnesses to expose inconsistencies in the witnesses's testimony. 

But no longer.

In  v. Packer v. State, No. 05-10-00552-CR (Tex.App.--Dallas, 2011), the Dallas Court of Appeals said that Judge Baxter's policies violated Mr. Packer's Sixth and Fourteenth Amendment rights to present a defense and to confront the witnesses against him.

 We agree with the parties that the trial court's ruling prohibiting the publication of the videotape evidence to the jury in a timely manner, a decision preordained by the trial court's policy without reference to the facts and circumstances of this case, was arbitrary and constitutes an abuse of the trial court's discretion

That such a policy was allowed to be carried out is a travesty. So much so that the state submitted a letter brief acknowledging that the policy violated Mr. Packer's right to an open trial.

Of course, so as not to lean too far in guaranteeing a defendant's right to a fair trial, the court decided not to publish the opinion - meaning it is not to be cited to as authority in subsequent cases.

Celebrating the Fourth (of July) by gutting the Fourth (Amendment)

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. -- Declaration of Independence

What better way to celebrate the anniversary of one of the most important documents in American history than to institute a statewide No Refusal Weekend for the Fourth of July?

Anyone who is pulled over for suspected drunk driving will have to either submit to a breath test or have their blood drawn. Officials say it takes as little as 15 minutes to secure a warrant for a blood draw and five minutes after that to get the blood drawn.

Fifteen minutes to eviscerate the rights of the accused. Just fifteen minutes to determine whether or not probable cause exists to open a vein. Just fifteen minutes to order an invasive procedure for an offense that is but one step removed from a traffic ticket.

We can celebrate the Fourth by pretending that our Fourth Amendment right to be left alone doesn't exist. We all know there's no such thing as an unreasonable seizure when a man wearing a badge smells alcohol on the breath of someone driving a car.

We can celebrate the Fourth by pretending that our Fifth Amendment rights to remain silent and not to incriminate ourselves doesn't exist. DWI is the only offense in which a person choosing to remain silent and not incriminate themselves is legally used against them.

We can celebrate the Fourth by pretending that the right to counsel under both the Fifth and Sixth Amendments doesn't exist. Heaven forbid a person accused of drunk driving be allowed to consult with an attorney before answering any questions or performing roadside coordination exercises.

However you choose to celebrate the Fourth, be careful, be safe and don't become a victim of the police state.

Avoiding confrontation 101

Last Thursday I wrote about what the Supreme Court had to say about confrontation and scientific reports in the Bullcoming opinion. The Court's decision does not mean, however, that the only person who can testify about the results of a lab report is the analyst who authored it.

In Bullcoming, the lab report included observations about the condition of the blood tubes and the procedures followed in testing the blood sample. The analyst who testified (not the author of the report) was not asked whether he had developed an independent opinion of the underlying test.

First let's assume that the report does not contain any personal observations of the analyst but consists merely of the results of the test. In that case, another analyst can testify as to the results of the test - but not to the manner in which the test was conducted. Whether such a scenario actually affords a defendant the opportunity to confront the witnesses against him is another story, however.

Now let's say that the analyst's supervisor had observed the analyst conduct the blood test. Then let's say that, just as in Bullcoming, the analyst was not called to testify. The supervisor could have testified to the contents of the report that he observed.

Now let's assume the other analyst conducted a second test on the blood sample. If the results of his test and the result of the test referenced in the lab report were consistent, the other analyst could have testified to his independent opinion about whether the driver was intoxicated at the time of the test (or driving).

Finally, let's not forget that the original analyst was on unpaid leave for an undisclosed infraction at the time of trial. The defendant was entitled to explore the reason for his being placed on leave as it might be relevant as to the trustworthiness of his testimony or the test results.

As a colleague of mine pointed out last week, the Court's opinion in this matter - particularly Justice Sotomayor's concurring opinion - is a primer in how the state can get lab reports (or at least the results of lab tests) into evidence in the absence of the analyst who either conducted the tests or wrote the report.

So while the Bullcoming decision is a victory for the right of confrontation, it's also a blueprint for the state in how to get around it.

The slow drip of tyranny

I came across the following message on one of the listservs I frequent the other day:

When did we as a society decide it was ok for the government to put electronic policing devices in our private homes and cars and to make up pee in cups every time we turn around? who is to blame? 

If everyone simply refused to comply with those conditions, what would happen?

Freedom is what would happen.

But it won't. We live in a society of lemmings. Few people are willing to rock the boat and those that do are labeled "troublemaker" and "subversive."

We have meekly turned to the state and asked it to protect us. We have decided that we would rather be safe than free. That we would rather have order than liberty.

We have sat by and watched as the state has whittled down the protections of the Bill of Rights. We have stood by as the police and courts have sliced, diced and chopped the Fourth Amendment into a meaningless melange of words on a piece of paper. Words now devoid of meaning.

We did nothing as the state assaulted our right to remain silent and not incriminate ourselves. We stood in awe as the Supreme Court made a mockery of the Fifth Amendment. Instead of having the right to remain silent and speak with an attorney before answering questions, the state now has the right to question us without an attorney unless we say otherwise.

We sat there blissfully unaware as our right to counsel was cut out from underneath us. We've allowed the Supreme Court to decide just what constitutes a critical moment in the criminal (in)justice system. I'm sorry, but being accosted by the police is the critical moment. Did someone along the way forget that we have the right to be left alone?

We have gladly handed over our freedom to the tools of the police state at airports and at the entrances to courthouses across this land. We have allowed the state to molest our children and terrorize the old, the sick and the infirm in the name of "protecting" us from terrorism.

We have gone from a society in which men were not afraid to sign their own death warrant by signing the Declaration of Independence to a society in which we are scared shitless to do anything that might bring attention to ourselves. We have gone from a society that took up arms and fought for its independence to a society that willingly bends over and takes whatever the state sends our way.

Why are we were we are now? It's because no one drew a line in the dirt and dared the powers of the state to cross it. It's because no one was willing to stand up and challenge the authorities.

Thomas Jefferson once said that "every generation needs a revolution."

We had one in 1776. Another one in the 1860's. Maybe it's time. Again.

A legal fiction

Texas courts like to maintain this legal fiction that license suspensions following a breath test refusal or failure are just civil matters. As a result of that fiction, at a license suspension hearing, the attorney for the Department of Public Safety must only show that the arresting officer had probable cause to believe the driver was driving while intoxicated.

Since it is treated as a civil matter, double jeopardy does not apply. Unless one is found not guilty by a jury, the DPS can still suspend a motorist's license even if the DWI case is dismissed.

Since it is treated as a civil matter, a motorist arrested for DWI does not have the right to consult with an attorney before deciding whether or not to submit to a breath test.

But how does the following statement fit within that legal fiction?

"If you refuse to give the specimen, that refusal may be admissible in a subsequent prosecution. Your license, permit or privilege to operate a motor vehicle will be suspended or denied for not less than 180 days, whether or not your are subsequently prosecuted for this offense." -- DIC-24

A license suspension certainly sounds like a criminal sanction and this nonsense about a refusal being admissible in a criminal prosecution exposes this legal fiction for what it is -- a cheap end run around the 5th and 6th Amendments.

At the point an officer asks a motorist to submit to a breath test, that motorist is already under arrest for drunk driving. At that time the motorist is sat down in front of the breath test machine, he isn't free to leave. No matter his response, the answer is testimonial. That triggers the 5th Amendment. As being asked to submit to a breath test is a significant moment in a DWI investigation, that should trigger the motorist's 6th Amendment right to an attorney.

Would the presence of an attorney gum up the works? Yep. Might allowing a motorist to consult with an attorney before deciding whether or not to blow result in more informed decisions? You bet. Would the presence of an attorney reduce the intimidation factor at the station house? Without a doubt.

It's time to end this legal fiction in Texas. Either eliminate the civil proceeding or be honest and criminalize breath test refusals. But doing that might just expose the legal fiction for what it was.

At what point does a budget crisis morph into a constitutional crisis?

According to an article in this week's Texas Lawyer, the bickering between Demopublicans and Republicrats over funding the federal government has put a stop to the payment of vouchers for attorneys taking appointments in federal court.

"Notices prominently displayed on the websites for the Northern District of Texas and the Western District of Texas let lawyers know that the two-week continuing resolution President Barack Obama signed into law extends federal funding until March 18, 2011, but it only provides enough funding to pay for vouchers that were processed but not paid during a recent suspension. 

The government will be unable to pay vouchers received after March 7, 2011. the notices on the Northern and Western Districts state that 'all vouchers that are submitted will be paid when funding is available.'"

At what point does this funding crisis infringe upon an indigent defendant's right to appointed counsel? At what point to private attorneys decide not to take on new federal appointments because of the uncertainty of getting paid?

"There is no doubt in my mind that this development will discourage criminal defense attorneys from accepting criminal appointments in the federal justice system going forward. We have overhead, we have staff, we have rent, we have families, we have health insurance, and to ask a private practitioner to forgo payments for services rendered for an indefinite period of time is untenable." -- David Finn, Dallas criminal defense attorney

The federal courts rely on private attorneys to take on cases so that the federal public defenders aren't swamped with too many cases. Without private attorneys willing to take on federal appointments, los federales would have to increase the number of public defenders -- something that is more costly than doling out cases to private attorneys.

Of course it doesn't help that there is no effective lobby for indigent defendants across this country. My guess is that, give a choice, most Americans would cut back on funding for indigent defense before cutting back on any programs near and dear to their hearts.

But this isn't just politics as usual. We're talking about our Sixth Amendment right to counsel - a right that belongs to all of us, regardless of our economic or social status.

Leading the lambs to slaughter

I was in County Court No. 2 in Galveston County this morning to file a motion and discuss a case with the prosecutor. Despite taking my time getting on the road, I managed to find my way into the courtroom at docket call.

And that's when it happened.

Something that was so jarring. Something that didn't sound right as soon as the words hit your ears.

A defendant answered the docket call. Judge Barbara Roberts (one of the new judges swept into office this past November) asked him if he had an attorney.

The gentleman said he did not.

"Would you like to speak to the DA?" came the question from the bench.

The man said he would. The judge asked him to come up front to see the clerk. When he got there the clerk handed him a waiver of rights

She never informed him that he had a right to counsel. She never informed him that if he couldn't afford an attorney he could petition the court for appointed counsel. She never informed him that the prosecutor did not represent him. She never informed him that anything he said to the prosecutor could be used against him.

In short, she failed to admonish him properly.

She failed to perform her job which is to sit as a neutral and impartial arbiter and to see that a criminal defendant's rights are not violated in her court.